                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   520719
________________________________

WILLIAM HARRELL et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

STATE FARM INSURANCE COMPANY,
                    Respondent.
________________________________


Calendar Date:   September 9, 2015

Before:   Peters, P.J., Lahtinen, Garry and Rose, JJ.

                             __________


      Rusk Wadlin Heppner & Martuscello, LLP, Kingston
(Christopher R. Kraft of Dall Vechia & Kraft, PC, of counsel),
for appellants.

      Keane & Bernheimer, PLLC, Hawthorne (Thomas J. Keane of
counsel), for respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered August 4, 2014 in Ulster County, which, among other
things, granted defendant's motion for summary judgment declaring
that it had no duty to defend or indemnify plaintiffs in an
underlying action.

      Plaintiff William Harrell (hereinafter Harrell) was
operating a motor vehicle belonging to his father, plaintiff
George Birdwell, when he was involved in a collision with a
second vehicle. Harrell's wife, Trina Harrell, who was then
pregnant with the couple's child (hereinafter the child), was a
passenger in Harrell's vehicle at the time. Thereafter, Trina
Harrell commenced a personal injury action, individually and on
                              -2-                   520719

behalf of the child, against the driver of the second vehicle.
Ultimately plaintiffs were also joined as defendants in that
action. After defendant disclaimed coverage, plaintiffs
commenced this action seeking a declaratory judgment that
defendant is required to defend and indemnify them in the
personal injury action under the terms of an automobile liability
policy, as well as a personal liability umbrella policy
maintained by Birdwell. Defendant moved for summary judgment
seeking a declaration that it was not obligated to defend or
indemnify plaintiffs under either of the policies, and Birdwell
cross-moved for summary judgment on the complaint. Supreme Court
granted defendant's motion and denied Birdwell's cross motion.
Plaintiffs appeal.

      Plaintiffs contend that Supreme Court erred in finding that
the automobile liability policy issued by defendant unambiguously
excluded coverage for injuries suffered by the child.1 In
particular, they argue that, although the policy terms operate to
exclude Harrell, coverage must be provided as the language is
ambiguous in application to Birdwell. It is well settled that
ambiguities in such policies are resolved against the insurer,
and "to 'negate coverage by virtue of an exclusion, an insurer
must establish that the exclusion is stated in clear and
unmistakable language, is subject to no other reasonable
interpretation, and applies in the particular case'" (Belt
Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003], quoting
Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652
[1993]; see Broome County v Travelers Indem. Co., 125 AD3d 1241,
1241 [2015], lv denied 25 NY3d 908 [2015]).

      As relevant here, the automobile policy states under the
heading "Exclusions" that "there is no coverage for an insured:
. . . 2. [f]or bodily injury to: . . . c. any other person who
both resides primarily with an insured and who: (1) is related to
that insured by blood, marriage or adoption." We reject


    1
        As plaintiffs' brief is thus   limited, any potential
claims regarding defendant's duty to   defend or indemnify
plaintiffs for injuries sustained by   Trina Harrell are deemed
abandoned (see Wild v Hayes, 68 AD3d   1412, 1413 n 1 [2009]).
                              -3-                  520719

plaintiffs' contention that this language is ambiguous and should
therefore be construed in their favor. Plaintiffs concede that
they both qualify as "an insured" as defined in the policy. At
the time of the accident, the child resided primarily with
Harrell, who is her father. Thus, as the child both resided
primarily with an insured and is related to that insured, there
is no coverage for her injuries for either plaintiff (see Pfoh v
Electric Ins. Co., 14 AD3d 777, 779 [2005], lv denied 4 NY3d 711
[2005]). This determination necessarily defeats the related
claim under the umbrella policy. Accordingly, we find no error
in Supreme Court's holding that defendant was not obligated to
defend or indemnify plaintiffs under either of the subject
policies.

     Peters, P.J., Lahtinen and Rose, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
