Progressive Northeastern Ins. Co. v Wing Sum Lau

[*1] Progressive Northeastern Ins. Co. v Wing Sum Lau 2006 NY Slip Op 50617(U) [11 Misc 3d 1079(A)] Decided on April 12, 2006 Supreme Court, Queens County Rios, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 12, 2006
Supreme Court, Queens County

Progressive Northeastern Ins. Co., Petitioner,

against

Wing Sum Lau,



3591/05

Jaime A. Rios, J.

Issue

The petitioner, Progressive Northeastern Insurance Company (Progressive) commenced this CPLR 7503 proceeding to stay an arbitration for uninsured motorist (UM) benefits demanded by the respondent, Wing Sum Lau (Lau) based upon Lau's alleged failure to comply with the reporting requirement of his insurance policy with Progressive involving hit and run accidents.

Background

On May 23, 2003, Lau, while crossing at the intersection of Main Street and the service road of the Long Island Expressway in Queens County, New York was allegedly struck by an unknown vehicle which left the scene of the accident. As a result of that occurrence, Lau allegedly sustained personal injuries.

On or about February 1, 2005, Lau served a demand for arbitration for UM benefits upon Progressive as the offending vehicle could not be identified.

Progressive timely commenced this proceeding to stay the arbitration for UM benefits demanded by Lau on the basis that Lau failed to comply with the condition of the UM endorsement of his insurance policy which requires the insured to report a hit and run accident within twenty four hours to the police.

By order dated, March 22, 2005, this court (Rios, J.) directed a framed issue hearing on this issue which was held on December 1, 2005.

At the hearing, Lau testified that as he was crossing the street, he was struck by an unidentified vehicle, which subsequently left the scene. Someone placed a call to 911 informing [*2]emergency services of this accident. An ambulance responded and removed Lau from the scene by ambulance. Lau was taken to New York Hospital of Queens, where he was treated and released. The next day Lau went to the 109th police precinct and reported the accident. Lau told the police that he had been hit by a car and wanted to obtain a police report, however he was advised that a written report had not been made.

On behalf of Progressive, Sondra Ginberg, a claims specialist testified that Lau failed to comply with the conditions of the UM endorsement of the policy regarding hit and run accidents. The relevant provision of the Progressive policy sets forth:



"(i) The insured or someone on the insured's behalf shall have reported the accident within 24 hours or as soon as reasonably possible to a police, peace or judicial officer or to the Commissioner of Motor Vehicles..."



Contentions

Progressive is contending that the arbitration should be permanently stayed on the basis that Lau breached his policy of insurance by failing to notify the police, peace, judicial officer or commissioner of motor vehicles of this incident within 24 hours or as soon as was reasonably practicable.

Lau contends that he satisfied the conditions of the Progressive policy in that a call to 911 was made, an ambulance arrived at the scene and that he reported the accident to the police on the day following the occurrence.

Decision

Contrary to Progressive's position that Lau's inability to produce a police report demonstrates his failure to comply with Progressive's reporting requirement involving hit and run accidents, the courts have consistently afforded a very liberal interpretation of this requirement, accepting police contacts that fall far short of obtaining a police report (see Country Wide Ins. Co. v Russo, 201 AD2d 368 [1994]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509 [1983]; Dixon v Motor Veh. Acc. Indem. Corp., 56 AD2d 650 [1977]).

Here, it is undisputed that an ambulance arrived at the scene, corroborating Lau's claim that someone reported the accident on his behalf to 911 within twenty four hours of the occurrence (see Dixon v Motor Veh. Acc. Indem. Corp., 56 AD2d 650, supra ; Gordon v Motor Veh. Acc. Indem. Corp., 90 Misc 2d 382 [1976]). Further, this court finds Lau's testimony that he went to the police precinct the day following the accident and reported the accident to be credible, albeit no report was generated, constituting sufficient compliance with Progressive's policy conditions regarding the reporting of a hit and run accident (see Gordon v Motor Veh. Acc. Indem. Corp., 394 NYS2d 509, {90 Misc 2d 382} supra ; Matter of Travelers Prop. Cas. Corp., NYLJ, October 1, 1999 at 25; see also Country Wide Ins. Co. v Russo, 201 AD2d 368, [*3]supra ; Canty v Motor Veh. Acc. Indem. Corp.,95 AD2d 509, supra ).

Accordingly, Progressive's petition is denied, the proceeding is dismissed and Lau may proceed to arbitration upon compliance with any remaining discovery.

Settle Judgment.

Dated: April 12, 2006

J.S.C.