SCHENBACK, GLORIA v. UNITED FRONTIER MUTUAL INSURANCE ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1463
CA 12-00651
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.
GLORIA SCHENBACK, JASON ROSENTHAL AND
THOMAS DOMBROWSKI, PLAINTIFFS-RESPONDENTS,
V MEMORANDUM AND ORDER
UNITED FRONTIER MUTUAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.
-------------------------------------------------
UNITED FRONTIER MUTUAL INSURANCE COMPANY,
INTERPLEADER PLAINTIFF,
V
ERIC PRUTSMAN, INTERPLEADER DEFENDANT-RESPONDENT.
BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT.
LAW OFFICES OF RICHARD S. BINKO, BUFFALO (RICHARD S. BINKO OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
JOHN RICHARD STREB, KENMORE, FOR INTERPLEADER DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered January 9, 2012. The order, insofar as
appealed from, granted the motion of plaintiffs for summary judgment
and determined that Eric Prutsman was an insured under his parents’
homeowners policy.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: This appeal arises from an action pursuant to
Insurance Law § 3420 (b) to recover from defendant-interpleader
plaintiff, United Frontier Mutual Insurance Company (United), the
amount of a default judgment that plaintiffs obtained against
interpleader defendant, Eric Prutsman. Prutsman’s parents were
insured by United and, pursuant to the terms of the policy, Prutsman
also would be covered if he resided in his parents’ household. United
appeals from an order that, inter alia, granted plaintiffs’ motion for
summary judgment on their complaint, determining that Prutsman is an
insured under the United policy and thus that plaintiffs are entitled
to recover against United pursuant to Insurance Law § 3420 (b).
-2- 1463
CA 12-00651
“A resident is one who lives in the household with a certain
degree of permanency and intention to remain” (Canfield v Peerless
Ins. Co., 262 AD2d 934, 934-935, lv denied 94 NY2d 757; see Matter of
State Farm Mut. Auto. Ins. Cos. v Jackson, 31 AD3d 1171, 1171-1172).
“The standard for determining residency for purposes of insurance
coverage ‘requires something more than temporary or physical presence
and requires at least some degree of permanence and intention to
remain’ ” (Government Empls. Ins. Co. v Paolicelli, 303 AD2d 633, 633;
see Canfield, 262 AD2d at 934-935). Here, plaintiffs met their
initial burden on their motion by establishing that Prutsman’s stay in
their house was only temporary and that plaintiffs, Prutsman and his
parents intended at all times that he return to the parents’ house to
live (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). In
opposition, United failed to raise a triable issue of fact (see
generally Konstantinou v Phoenix Ins. Co., 74 AD3d 1850, 1851, lv
denied 15 NY3d 712; Matter of Prudential Prop. & Cas. Ins. Co.
[Galioto], 266 AD2d 926, 926).
Entered: December 28, 2012 Frances E. Cafarell
Clerk of the Court