Bruce v. Michigan Millers Mutual Insurance

13 A.D.3d 1183, 788 N.Y.S.2d 550, 2004 N.Y. App. Div. LEXIS 16372

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2004
• Status: Published

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Lewis County (Joseph D. McGuire, J.), entered January 9, 2004 in a declaratory judgment action. The judgment granted plaintiff’s motion for summary judgment and declared that Travis Niles is a resident of defendant Sharon A. Niles’ home for insurance purposes.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion in part and dismissing the complaint against defendants Carl J. Niles and Sharon A. Niles and as modified the judgment is affirmed without costs.

Memorandum:

Plaintiff commenced this declaratory judgment action following an automobile accident between two vehicles, one operated by plaintiff and the other by Travis Niles. Supreme Court properly granted the motion of plaintiff for summary judgment declaring that Travis Niles is a resident of defendant Sharon A. Niles’ home under the terms of the insurance policy that Sharon Niles had with defendant Michigan Millers Mutual Insurance Company. Although at the time of the accident Travis Niles was serving in the United States Army and stationed at Fort Drum, his driver’s license listed his residence as Peterboro Road (the address of Sharon Niles), he possessed keys to that residence, he visited the residence while on military leave, he had mail sent to the residence while at Fort Drum and continued to use the address for mailing purposes, and he could identify no other address as his “residence” (see New York Cent. Mut. Fire Ins. Co. v Peckey, 298 AD2d 970, 971 [2002], lv denied 99 NY2d 505 [2003]).

The court erred, however, in failing to address that part of defendants’ cross motion seeking summary judgment dismissing the complaint against defendants Sharon Niles and Carl J. Niles. The record establishes that the declaratory relief sought in this action is inappropriate with respect to those defendants, and plaintiff takes no position on that issue. We therefore modify the judgment by granting that part of the cross motion seeking dismissal of the complaint against those defendants, and we otherwise affirm. Present—Green, J.P, Pine, Hurlbutt, Martoche and Smith, JJ.