Upon the reading and filing of the following papers in this matter: (1) Notice of Petition by the petitioner, dated December 7, 2006, and supporting papers; (2) Answering Statement by the respondents, dated January 3, 2007; and now [*2]

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT

ORDERED that the request by the petitioner, State Farm Indemnity Insurance Company, for a permanent stay of arbitration in this matter is denied; and it is further

ORDERED that the parties are directed to proceed forthwith to arbitration in accordance with the policy provisions; and it is further

ORDERED that counsel for the petitioner shall promptly serve a copy of this Order upon counsel for the respondents.

In this matter, the petitioner, Allstate Insurance Company ("Allstate") moves for an order, inter alia, pursuant to CPLR §7503 permanently staying the arbitration demanded by the respondents as a result of injuries allegedly sustained by the infant respondent, Robert Giffone, on May 8, 2006. On that date, Robert Jr. was struck by an uninsured motorcycle while he was riding his bicycle. As a result of his alleged injuries, the respondents served upon Allstate a demand for arbitration pursuant to the terms of the applicable Allstate policy of insurance. On the date of the accident, respondent, Nancy Moreno had a valid policy of automobile insurance with Allstate under policy number 90372107104/23, effective April 23, 2006 through October 23, 2006. In its petition to stay the arbitration, Allstate essentially argues that Supplementary Uninsured Motorist (SUM) coverage under the policy should not be afforded to Robert, Jr. because he was not a resident relative of Ms. Moreno when the subject accident occurred.

In the Allstate SUM policy endorsement, the term "insured" is defined in relevant part as "the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse." Allstate's argument against coverage is premised on the undisputed fact that its policyholder, Ms. Moreno, was not married to Robert Jr.'s father, respondent Robert A. Giffone, Sr., until June 30, 2006, after the date of accident. Therefore, Allstate argues, Robert Jr. was not an "insured" as defined by the policy and that, consequently, he is not entitled to proceed to SUM arbitration against Allstate.

At the hearing scheduled in this matter, counsel for the parties stipulated to the essential facts and evidence pertinent to a determination of the issue presented. The parties agree that at the time of the accident, the subject Allstate policy named Robert A Giffone, Sr. as an insured driver under the policy. In this regard, the evidence presented includes a copy of a New York State Insurance Identification Card issued by Allstate to Mr. Giffone under the subject policy, for his 1995 Jeep Cherokee (VIN 1J4GZ78Y6SC710975). The Allstate Insurance Card specifically states that "An authorized NEW YORK insurer [Allstate] has issued an Owner's policy of Liability Insurance . . . to: Giffone, Robert A." The evidence also includes a copy of the Allstate Auto Policy Declarations, which confirms that the policy for Mr. Giffone's Jeep Cherokee included SUM coverage.

Based on the evidence presented, the respondents have established that respondent Robert A. Giffone, Sr. was, himself, an insured under the subject Allstate policy at the time of [*3]Robert Jr.'s accident. The evidence has also established that although Robert Jr. resided with his mother, Catherine Giffone, at the time of the accident, he also resided with his father under a joint custody arrangement. It is well settled that a person may have more than one residence for purposes of insurance coverage (Hochhauser v. Elec. Ins. Co., 46 AD3d 174, 844 NYS2d 374 [2d Dept 2007]; Dutkanych v United States Fid. & Guar. Co., 252 AD2d 537, 675 NYS2d 623 [2d Dept 1998]). Whether a person is a resident of an insured's household requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain (Hochhauser v. Elec. Ins. Co., supra ; New York Cent. Mut. Fire Ins. Co. v Bonilla, 269 AD2d 599, 704 NYS2d 819 [2d Dept 2000]; Allstate Ins. Co. v Rapp, 7 AD3d 302, 776 NYS2d 285 [1st Dept 2004]).

In opposition to Allstate's petition, the respondents submit affidavits from both of Robert Jr.'s parents, respondent Mr. Giffione and Catherine Giffone. The sworn affidavits establish that at the time of the May 8, 2006 accident, both parents shared joint custody of Robert Jr., and that Robert Jr. resided with his father on alternate weekends and during summers. More specifically, Robert Jr. had his own bedroom and kept clothing and a toothbrush at his father's house on a year-round basis. These facts sufficiently establish that as a child of divorced parents, Robert Jr. was, in fact, a resident of both parents' households on the date of his accident (Nationwide Ins. Co. v Allstate Ins. Co., 181 AD2d 1022, 581 NYS2d 955 [4th Dept 1992]; Pellegrino v State Farm Ins. Co., 167 Misc 2d 617, 639 NYS2d 668 [Sup Ct, Nassau County 1996]; Hochhauser v. Elec. Ins. Co., supra ; Dutkanych v United States Fid. & Guar., supra ).

Based on the foregoing, Robert Jr. was a resident relative of his father, a named Allstate insured, when the subject accident occurred. Therefore, SUM coverage applies, the petitioner's application for a stay of arbitration is denied and the parties are directed to proceed to arbitration pursuant to the applicable policy provisions.

This constitutes the Decision and Order of the Court.

Dated:June 5, 2008

Peter H. Mayer, J.S.C.