| Konstantinou v Phoenix Ins. Co. |
| 2010 NY Slip Op 05175 [74 AD3d 1850] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| George Konstantinou, as Administrator of the Estates of StavrosKonstantinou and Another, Deceased, Appellant, v Phoenix Insurance Company,Respondent. |
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Appeal from an order of the Supreme Court, Wayne County (Dennis M. Kehoe, A.J.),entered June 2, 2009. The order denied the motion of plaintiff for summary judgment andgranted the motion of defendant for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: This action arises from a motor vehicle accident that occurred when DavidThurston, who was operating a Chevrolet Celebrity (Celebrity) owned and insured by his sister,Tynette Thurston, crashed into a vehicle driven by decedent Stavros Konstantinou and in whichdecedent Lorin Konstantinou was a passenger. Lorin Konstantinou sustained serious injuries thatresulted in death, and Stavros Konstantinou sustained serious injuries but later died of unrelatedcauses. Stavros Konstantinou, individually and as administrator of Lorin Konstantinou's estate,commenced an action against, inter alia, the Thurston siblings and their mother, Brenda L.Henderson. After obtaining partial satisfaction of a judgment in favor of Stavros Konstantinou,as administrator of Lorin Konstantinou's estate, against the Thurston siblings and a judgment infavor of Stavros Konstantinou, individually, against the Thurston siblings, plaintiff commencedthis action pursuant to Insurance Law § 3420 seeking to recover the unpaid balance of thejudgments under an automobile insurance policy issued by defendant to Henderson. SupremeCourt, inter alia, granted defendant's motion for summary judgment dismissing the complaint.We affirm.
The general coverage provision in Henderson's insurance policy provided: "We willpay damages for which the insured becomes legally responsible because of bodily injuryor property damage caused by accident and arising out of the ownership, maintenance or use ofyour car or any [*2]non-owned car." The policylisted Henderson as the only named insured and a Chevrolet Lumina as the only covered vehicle.The policy defined "your car" as, inter alia, "any vehicle described on the declarationspage of [the] policy." Thus, the Celebrity was not covered under the category "your car."
The policy also defined a "non-owned car" as "a land motor vehicle with at least fourwheels designed to be used mainly on public roads, or a trailer. However, it must not beowned by or furnished or available for the regular use of you or a relative." Thepolicy further explained that "[y]ou and your mean the person [listed asthe named insured on the declarations page, i.e., Henderson, and that] . . .Relative means your relative, residing in your household."
Contrary to plaintiff's contention, the court properly determined that the Thurston siblingswere relatives of Henderson who resided in her household and that the Celebrity therefore wasnot a "non-owned car" for which defendant would be required to provide coverage with respectto the accident in question. A person is a resident of a household for insurance purposes if he orshe " 'lives in the household with a certain degree of permanency and intention to remain' "(Matter of State Farm Mut. Auto. Ins. Cos. v Jackson, 31 AD3d 1171, 1171 [2006]).Although Tynette Thurston lived at college at the time of the accident, defendant submittedevidence in support of the motion establishing that she was a resident of the household inasmuchas she lived with Henderson during the summers, received mail at Henderson's house, stayedthere every other weekend, and listed that address on the Celebrity's title and insurance (seeDutkanych v United States Fid. & Guar. Co., 252 AD2d 537, 538 [1998]; see also Matterof Prudential Prop. & Cas. Ins. Co. [Galioto], 266 AD2d 926 [1999]). Thus, because theCelebrity was owned by a relative of Henderson who was a resident of her household, it was nota "non-owned car" under the terms of the policy entitled to coverage by defendant.
Moreover, it was undisputed that David Thurston was a relative of Henderson who was aresident of her household, and defendant submitted evidence in support of the motionestablishing that the Celebrity was available for his regular use inasmuch as he had unrestrictedaccess to the Celebrity while Tynette Thurston was at college and had used it several times priorto the accident (see generally Newmanv New York Cent. Mut. Fire Ins. Co., 8 AD3d 1059, 1060 [2004]). Thus, the Celebrityalso was not a "non-owned car" within the meaning of the policy because it was available for theregular use of a relative of Henderson who was a resident of her household.
Contrary to plaintiff's further contention, the Celebrity is not entitled to coverage underHenderson's policy with defendant on the ground that defendant failed to disclaim coverage in atimely manner. It is well established that "[d]isclaimer pursuant to [Insurance Law §] 3420(d) is unnecessary when a claim falls outside the scope of the policy's coverage portion. Underthose circumstances, the insurance policy does not contemplate coverage in the first instance,and requiring payment of a claim upon failure to timely disclaim would create coverage where itnever existed" (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000];see State Farm Fire & Cas. Co. vWhiting, 53 AD3d 1033, 1035 [2008]; see generally Zappone v Home Ins. Co.,55 NY2d 131, 137-139 [1982]). Present—Scudder, P.J., Martoche, Sconiers, Green andGorski, JJ. [Prior Case History: 2009 NY Slip Op 30764(U).]