IN THE MATTER OF AETNA CASUALTY AND SURETY
COMPANY, APPELLANT, v. ANDREW GUTSTEIN,
80 N.Y.2d 773, 599 N.E.2d 672, 587 N.Y.S.2d 268 (1992).
June 4, 1992
2 No. 96
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
Evan H. Krinick, for Appellant.
Edward K. Moran, for Respondent.
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, plaintiff, who maintained an apartment in Manhattan where he resided more than eighty percent 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 plaintiff stored some belongings in his parent's New Jersey house and spent the night there occasionally, we conclude that Supreme Court's finding that plaintiff was not a resident of his father's household more nearly comports with the weight of the evidence than does the Appellate Division's con- trary finding.
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Order reversed, with costs and the petition to stay arbitration granted, in a memorandum. Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock and Bellacosa concur.