Aetna Casualty & Surety Co. v. Gutstein — 80 N.Y.2d 773

Majority

p. 773

In the Matter of Aetna Casualty and Surety Company, Appellant, v Andrew Gutstein, Respondent.

Argued April 28, 1992;

decided June 4, 1992

p. 775

APPEARANCES OF COUNSEL

Evan H. Krinick for appellant.

Edward K. Moran for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration granted.

Under the facts of this case as found by Supreme Court, respondent, who maintained an apartment in Manhattan where he resided more than 80% of the time, is not a covered person entitled to uninsured motorist benefits under his father’s insurance policy. The policy provides such coverage only for a "family member”, defined in the policy as "a person related to [the insured] by blood, marriage or adoption who is a resident of [the insured’s] household”.

Although respondent stored some belongings in his parent’s New Jersey house and spent the night there occasionally, we conclude that Supreme Court’s finding that respondent was not a resident of his father’s household more nearly comports with the weight of the evidence than does the Appellate Division’s contrary finding.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.