Matter of Preferred Mut. Ins. Co. (Fisher)

Matter of Preferred Mut. Ins. Co. (Fisher) 2015 NY Slip Op 02837 Decided on April 2, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 2, 2015
519923

[*1]In the Matter of PREFERRED MUTUAL INSURANCE COMPANY, Appellant, and

and

GILLIAN FISHER, Respondent.

Calendar Date: February 18, 2015
Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

McCabe & Mack, LLP, Poughkeepsie (Betsy N. Abraham of counsel), for appellant.

Scarzafava Baskedis Law Firm, Oneonta (Theodoras Basdekis of counsel), for respondent.

Peters, P.J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Becker, J.), entered January 13, 2014 in Delaware County, which denied petitioner's application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

In September 2012, respondent was struck by a vehicle while crossing a street in Brooklyn. In August 2013, she submitted a request to petitioner, her parents' automobile liability insurance company, for arbitration of her potential supplemental uninsured/underinsured motorist (hereinafter SUM) insurance coverage under her parents' policy. The parties entered into a stipulation to temporarily stay arbitration to enable discovery. Shortly thereafter, petitioner moved for a permanent stay of

arbitration on the basis that respondent was not a resident of her parents' home at the time of the accident and was therefore excluded from SUM coverage under the terms of her parents' insurance policy. Supreme Court denied petitioner's application on the ground that the parties' stipulation waived the issue of respondent's entitlement to benefits, and temporarily stayed arbitration pending further discovery. Petitioner appeals.

We agree with petitioner that Supreme Court erred in concluding that the parties' stipulation waived the issue of respondent's entitlement to SUM coverage. Although the stipulation stated that, "[u]pon the completion of [certain] discovery set forth [in the stipulation, petitioner] agrees to proceed to arbitration," a stipulation cannot create coverage of an individual, nor the obligation to arbitrate the issue of coverage, where the individual does not meet the [*2]relevant contractual prerequisites for coverage (cf. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-565 [2008]; Zappone v Home Ins. Co., 55 NY2d 131, 134-136 [1982]). Stated differently, the stipulation cannot independently bind petitioner to supply coverage where no such coverage exists under the policy.

Turning to the merits, petitioner contends that, because respondent was not a resident of her parents' household at the time of the accident, she is not entitled to SUM coverage. The documents in the record — consisting of a short affidavit of respondent, certain bank statements, communications from her medical providers and mailing labels — are insufficient to determine this issue, necessitating that a hearing be held (see Matter of A. Cent. Ins. Co. v Williams, 105 AD3d 1042, 1042-1043 [2013]; Matter of State Farm Mut. Auto. Ins. Co. v Bonifacio, 69 AD3d 864, 864 [2010]; Matter of State Farm Mut. Auto. Ins. Co. v Nicoletti, 11 AD3d 702, 702 [2004]).

Lahtinen, Garry and Lynch, JJ., concur.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.