D'Amico v. Pennsylvania Millers Mutual Insurance

72 A.D.2d 783, 421 N.Y.S.2d 605, 1979 N.Y. App. Div. LEXIS 14030

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1979
• Status: Published

Opinions

In an action to recover damages for breach of defendants’ alleged obligations under certain homeowners insurance policies issued by them, (1) defendant General Accident Fire & Life Assurance Corp. (General) appeals from an order of the Supreme Court, dated September 20, 1978 and entered in Suffolk County, which granted defendant Pennsylvania Millers Mutual Insurance Company’s (Pennsylvania) motion for summary judgment dismissing the complaint against it and (2) defendant General and plaintiff separately appeal from so much of an order of the same court dated November 9, 1978, as upon granting reargument, adhered to its original determination. Appeal from order dated September 20, 1978, dismissed, without costs or disbursements. Said order was superseded by the order dated November 9, 1978. Order dated November 9, 1978 affirmed insofar as appealed from without costs or disbursements. The proof revealed that Dennis Traína moved out of his parents’ residence and moved into the D’Amico home, taking most of his clothes with him. He returned to his parents’ residence for visits which lasted only a few hours. There was testimony that he advised the unemployment insurance office of this change of address when he moved out. It was further established that after he moved into the D’Amico home he used that address on his driver’s license. Also at the time he was separated from military service he used the same address. At the time of his discharge from the service he returned to the D’Amico residence. In light of these facts, the evidence clearly indicated an intention on the part of Dennis Traína, the insured’s son, to abandon his parents’ residence. Special Term was justified in concluding that he no longer fell within the definition of an "insured” under the terms of the homeowners insurance policy issued to his parents by defendant Pennsylvania. Therefore, Pennsylvania’s motion for summary judgment was properly granted. Mollen, P. J., Mangano and Cohalan, JJ., concur.