
    Progressive Insurance Companies, Appellant, v William Brouse, as Administrator of the Estate of Jammie Powell, Deceased, et al., Defendants, and Jeffrey C. Pachoud, as Administrator of the Estate of Janell Pachoud, Deceased, et al., Respondents.
    [708 NYS2d 673]
   —Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied plaintiff’s motion for summary judgment but erred in declaring that plaintiff is obligated to defend and indemnify its insured, Troy Powell, against personal injury claims arising from an automobile accident involving Jammie Powell, Troy’s brother, the driver of Troy’s vehicle. Troy Powell is not a party to this action and plaintiff asserted that it has not raised any issue with respect to Vehicle and Traffic Law §388.

Plaintiff contends that it is not required under the terms of Troy Powell’s insurance policy to defend the Estate of Jammie Powell because Jammie was not an “insured person” as defined in the policy. There is no dispute that Jammie was not a “relative” as defined in the policy because he did not reside in the same household as the insured. Plaintiff failed to establish as a matter of law, however, that Jammie did not have implied permission to drive Troy’s vehicle.

Thus, although plaintiffs motion was properly denied, we modify the judgment by deleting the words “with prejudice” from the first decretal paragraph. The court erred in sua sponte granting judgment in favor of Troy and Jammie, and we further modify the judgment by vacating the second decretal paragraph. (Appeal from Judgment of Supreme Court, Oswego County, Nicholson, J. — Declaratory Judgment.) Present— Pigott, Jr., P. J., Pine, Scudder and Kehoe, JJ.  