Matter of Hereford Ins. Co. v Frota
Annotate this CaseDecided on September 21, 2005
Supreme Court, New York County
In the Matter of the Application of HEREFORD INSURANCE COMPANY, Petitioner, For an Order Staying the Arbitration
against
Demanded by WIDGER FROTA, Respondent.
102927/05
Ronald A. Zweibel, J.
Petitioner moves, pursuant to CPLR 7503, to stay uninsured motorist arbitration demanded by respondent on February 10, 2005. Petitioner issued Motor Vehicle Liability Policy number CA215579-0 to Carrie Cab Corp. The policy included a New York Automobile Accident Indemnification Endorsement. Pursuant to said endorsement, petitioner agreed to pay certain sums for injury sustained by respondent caused by an accident arising out of the ownership, maintenance or use of an uninsured automobile.
The underlying claim occurred on November 9, 2002, when respondent Widger Frota, a passenger in petitioner's insured vehicle, allegedly sustained personal injuries when the insured vehicle was struck in the rear by an unidentified vehicle. According to respondent, at the scene of the accident, the cab driver exited his vehicle and approached the other driver. At that time, instead of exchanging information and calling the police, the cab driver proceeded to curse at the driver that had rear-ended the cab, reenter his car and left the scene. The cab driver allegedly never called the police. He did not stop the other vehicle from leaving the scene as well nor did he ask respondent if he needed medical attention.
A few blocks from the scene of the accident, respondent requested that the cab driver pull over so that he could exit the vehicle. After visiting Lenox Hill Hospital on the same day, respondent, allegedly within 24 hours of the accident, entered the 19th Precinct where he reported the accident to the authorities. Instead of making out a police report, respondent was handed a blank accident report and told to return to the precinct when he had completed the forms. Respondent states that he filed the report with the 19th Precinct and that a copy of that report was forwarded to petitioner. The only statement challenged by petitioner is respondent's claim that he made a sworn statement.
Petitioner claims that the arbitration demanded by respondent should be permanently stayed because respondent failed to provided petitioner with a sworn statement regarding his uninsured motorist claim within 90 days of the alleged "hit and run" accident or as soon as practicable. Petitioner further claims that the arbitration should be stayed because respondent failed to notify the police within 24 hours or as soon as reasonable as required by the policy.
Respondent's failure to have filed with petitioner a statement under oath pertaining to the [*2]"hit and run" does not, as a matter of law, bar his request to seek coverage under the uninsured motorist coverage provision (see Eveready Insurance Company v. Schwartzberg, 203 AD2d 101 [1st Dept. 1994]). Apparently, respondent reported the accident to the police, who had respondent fill in the accident report, which he did. Respondent returned the report to the 19th Precinct. Petitioner obviously has a copy of that report as it is annexed to the petition papers. Respondent was neither the owner nor the driver of the vehicle, nor the insured under the policy. Although contacted by respondent, the only information requested on behalf of petitioner was for chiropractic and orthopedic examinations of respondent, which were done. Petitioner does not deny that it neither requested additional information from respondent nor a sworn statement from him until now, nearly two and a half years after the accident. Since there is no claim that respondent had possession of the policy even though it had been requested, there is no reason to believe that respondent was aware of the 90 day provision for the filing of a sworn statement concerning the incident, of which petitioner had timely notice (see Eveready Insurance Company v. Schwartzberg, 203 AD2d 101).
Additionally, respondent is correct in that there is no affidavit from petitioner's policy holder to the effect that the accident was not reported to the police within 24 hours by the insured. Hence, there is a question as to the sufficiency of petitioner's papers. Accordingly, any delay in filing a sworn statement is excused and petitioner's request for a stay of the demand for arbitration under the policy is denied.
The Court notes that the policy does, in fact, call for a sworn statement from respondent. There is an affidavit from respondent annexed to his response papers. If the affidavit is not a sufficient sworn statement for petitioner's purposes, respondent is to supply petitioner with such a statement within 10 days of entry of this decision. Moreover, respondent is to comply with any pre-conditions, such as an Examination Under Oath, a physical examination and medical authorizations, required under the policy with respect to the arbitration.
This constitutes the decision and order of this Court.
Ronald A. Zweibel, J.S.C.
Dated: September 21, 2005
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