Nationwide Insurance v. Smaller ( 2000 )

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary uninsured motorist benefits, Lisa Smaller appeals from an order of the Supreme Court, Nassau County (O’Shaughnessy, J.H.O.), dated December 7, 1998, which granted the petition.

Ordered that the order is affirmed, without costs or disbursements.

The appellant is not a covered person entitled to supplementary uninsured motorist benefits under her former husband’s insurance policy. The policy provides such coverage only for the “named insured and, while residents of the same household [the insured’s] spouse and the relatives of either of [the named insured or spouse]”. Although the appellant stored some belongings in her then-estranged husband’s home, had a key, and would visit to obtain clothing, she was not a resident of the household (see, Matter of Aetna Cas. & Sur. Co. v Gutstein, 80 NY2d 773; cf., Pellegrino v State Farm Ins. Co., 167 Misc 2d 617). The appellant admitted in sworn documents and in a police accident report that she had been living separate and apart from her husband at the time of the accident and that her resident address was not the marital address.

Since the appellant was not a covered person under the subject policy, the petitioner had no statutory obligation to provide her with prompt notification of disclaimer (see, Insurance Law § 3420 Ed]; Zappone v Home Ins. Co., 55 NY2d 131; Matter of Fireman’s Fund Ins. Co. v Freda, 156 AD2d 364). Joy, J. P., Thompson, Krausman and Goldstein, JJ., concur.