Plaintiffs notified their local insurance agent of the accident. Defendant Excelsior Insurance Company thereafter disclaimed coverage on the ground that Roth was an additional insured under plaintiffs ' homeowner's policy in that Roth was a relative living in plaintiffs' home and the policy did not provide coverage for bodily injury to an insured. Roth and his wife, derivatively, thereafter commenced the underlying personal injury action against plaintiffs seeking damages for his injuries. Plaintiffs moved for summary judgment and defendants cross-moved for summary judgment or, alternately, to vacate plaintiffs' note of issue to allow further discovery. Supreme Court granted plaintiffs' motion and declared that defendants were required to defend and indemnify plaintiffs in the underlying action and provide insurance coverage under their policy, determining that the Roths never intended to make plaintiffs' residence their permanent residence.
Defendants now appeal.
The determinative issue is whether Roth was a resident of plaintiffs' household at the time of his accident and, therefore, an insured under plaintiffs' policy. The uncontroverted proof established that approximately two months prior to the accident, the Roths sold their home in Florida and moved to New York. They accepted plaintiffs' offer to stay in their three-bedroom home until they could secure employment and a new home. The Roths slept in a bed in plaintiffs' dining room where they kept their clothing in boxes, as the other bedrooms were occupied by plaintiffs, their son and his family. The Roths' belongings were stored in plaintiffs' attic and basement as well as at other relatives' homes.