Government Empls. Ins. Co. v Shayayev

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Government Empls. Ins. Co. v Shayayev 2012 NY Slip Op 30906(U) April 5, 2012 Supreme Court, New York County Docket Number: 0107274/2011 Judge: Doris Ling-Cohan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ,[* 1] SCANNED ON41912012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COTJNTY PRESENT: Hon. Doris Ling-Cohan, Justicc Part 36 GOVERNMENT EMPLOYEES INSURANCE COM I’ANY, INDEX NO. 107274/11 Petitioner, MOTLON SEQ. NO. 001 TATJANA GOKOBETZ, licspondent, ELDAli A. SHAYAYEV, WES‘I’FALL AUTO SALES, ACCKPTANCE INlIEMNITY INSURANCE COMPANY, SHIMTU L. AGHARABAYEV and LIBERTY MUTUAL FIRE INSURANCE COMPANY, 1’ ro p os ed Ad rl it i on a1 licspo 11d cnts . ~ ~~ ~~ ~ The following p p c r s , numbered ~ ~ I p j t v \ i YOHK )iI ~ J T C1-F-HK’S OFFICE Y ~~ 1-7 wurc considered on this motion to stay srhilr-ation: PAYERS NUMSERlilJ) Noticu of Mution/Ortler to Show Cause, - Alli?tl:lviIs-Exhibits Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 09 2012 1 1 Yes 1,2 3,4,5 6, 7 [ X I No Upon the foregoing papcrs, it is ordcred that this motion is dccided as indicated bclow. BACKC;RO.lJNJI Petitioner Government Employecs Insurance Clompany (GI-3CO)comnic~iced this special procccdirig against respondent ‘I’atiana Gorobctz (Gorobetz) lo stay an arbitration. licspondcnt Gorohetz filed a Dcmand for Arbitration dated May 27, 201 1 (Arbitration Ucmand), based on injurics allcgedly sustained by Gorobctz in ;in accident on Novcmber 24, 201 0 (Subject Accident) involving an allegedly uninsured motorist. Thc Arbitration Demand was based on an insurancc policy issued by Cil3C:O to Gornbetz, providing uninsurcd motorist benetits. Pctilioncr inc~vcs (i) perniaiiently stay arbitration; (ii) slay arbitration pending a hca.ring on the to: [* 2] issue of whellier the o k i d i n g vehicle was uninsured; (iii) join Eldar A. Shayayev, Westfill1 Auto Sales, Acceptance Indcmnity Insurance Company, Shimtu L. Aghababaycv, and Liberty M~rlualFire Insurance Company, to this procccding as additional respondcnts; and (iv) direct rcsporiderit Gorobetz to prodircc relevant medical records and authorizations, and submit to an cxarnination undcr oath and physical examinalion. The S ~ h j e cAccident involved a 2002 I n h i t i (JiiGnili), operated b y proposed aclditional l rcspondcnt Edgar A. Shayayev (Shayayev) and owned b y proposed additional respondent Westfall Auto Sales (Westhll Auto), aiid a 2008 Honda (Honda), operated b y respoudcnt Gorobctz. A responding police officer, OlKcer Mendez, lilled out a police accident report (Police R.eport) on the date of tlic Su bj ect Accident. ‘Iherealier, respondent GorobetL filed the Arbitration Demand. GEICO, alleging h a t the Inlinili was insured at the time oi‘the Subject Accident, colmneiiced this proceeding arguing that a permanent stay of the arbitration is necessaiy given that respondent Gorobetz hiled to proffer suflicient proof thal the Infiniti is uninsured. Allernatively, GEICO contends that a temporary stay of thc arhitration is i nccessary to deterinine, at : framed issue hearing, whether the Inliiiiti was, in l’xt, insured. DISCUSSION C;EIC:O contends that Acceptance Indcmnity Iiisuraxicc C‘onipany (Acceptance) was the allcged insurance carricr for proposed additional respondcnts Shayaycv and Westt‘dl Auto. However, proposed addiliorial rcspondcnt Acceptance scrit a letter, dated April 18, 20 1 1, (ficceptance Disclaimer Letter) disclaiming coverage of the Inf?niti. ‘l’hc Acccptancc Disclaimer Txttcr states that “I l ]lie 2002 Infiniti does not qualify as a covcrcd auto ...I and proposcd additional rcspondcnt Shayaycvl docs not qualify ax an insured under the policy issued to Westfall Auto Sales.” l’ctition, Esh. C. In opposition, respondcnt Gorobctz argucs that the arbitration should not bc pcrmancntly stayed. ~ [* 3] However, respondent Goro betz consents to, and joins, GEICO’s request for a temporary stay, pending a framed issue hearing on the issue of’coverage, and to join proposed additional respondents Shnyaycv, Wcstfall Auto, Acceptancc, Shimtu L. Aghababayev (Aghababayev), and l,ibcl-ty Mutrial Fire Insurance Company (Liberty Mutual). Additionally, respondent Gorobetz agreed to the production of medical authorizations, copies of which are attached to her opposition papers as exhibit E. I<espondcnt Gorobetz also consents to submit to an independent medical examination and an examination under oath. While not partics to this proceeding, Acceptancc and Westlid I Auto jointly oppmc GEICO’s motion on the grounds that: (1) GGIC.’(I)’spetition is untimely; (2) GEIC.’C) I’ailed to obtain jurisdictioii over Acceptance; and (3) Acceptance has no coverage for the Iniiniti, as a result o l the Acceptance Disclaimer Lelter. Likewise, non-party Li herly Mutual opposes GE1C:O’s motion on the grouncis Ilia( GHCO has hiled to present a prima facie case ol’issuaiicc of a valid insurance policy, by 1.iberty ask Mutual, covcriiig the date of’ the Subjccl Accident. Acceptance, Wcstfdl Auto, ririd Li bcrly M~ilual that the court deny GEICO’s rcquesl to add them as additional respondents. As a preliminary matter, the within petition is timely i n that it was 1Xccl within 20 days aftcr service of thc Arbitration Ilcniand as required. See CPLR $7503. Acceptance and Wcstfall Auto arguc that the 20 days 10 bring a petition to stay arbitration begins to run with service of the dcniand to arbitrate, here, May 27, 201 1 . I lowevcr, “1 t.lhe law is wcll scttlcd t h i thc 20-day period provided in CPLK 7503(c) is to be coniputcd from tlic time the demand for arbitration is rcccived, not from the tiine it is mailed.” Allstcite Irzs. Co. v Metuycr, 137 AD2d 454, 455 (1” Dep’t 1988). Further-tilore. “[ilii calculating the tiine in which a slay application is to be made, the day 011 which the dernand is rcccived is not included.” Id. I Tere, GEICO states that the Arbitration Demand was received on J m c 9, 201 1 atid the petition fjlcd on June 22, 201 1 , ‘l’hc proolsubniitted by GEICO includes an envelope and thc Arbitration Dem~md, date stamped upon rcceipt, indicating that it was received 3 oii June 2, 201 1 . A‘C;BCJ [* 4] lieply Affiimation, Exh. A. Whether the Arbitration Demand was rcceivcd on June 0, 201 1 or Jime 2, 201 I , the petition, being filed on June 22, 201 1, was within the requisite 20 day period. Accordingly, denial 011 such basis is not warranted. As to GEICW’s motion, under the within cjrcumstanccs, an evidcxitiary hcariiig is appropriate oil the issue of whether tlic offcnding vehicle was insured at the tiriic of the accident. SLY M o f w Vl?hicIe Accident Iizck~mniJiccrlioi? Corp. v l,inch, 17 AD2d 6 10 ( 1 ’I Dcpt 1962); Allstnle Ins. eo. v Cusmovci, 145 AD2d 630 (Y’ t 1988). “Whcre, as lierc, there is a queslioii raised as to whether- or not the Ikp alleged responsible motorist was in fact insured, the issues with rclation to such question must bc determined hy a preliminary trial.” Adolor Vehicle Accidenl l~idcmr.iificnlit,r? I:’oip. v J,ir.ilkr, 17 A l X d a1 6 10. Once plaintiff has cstablislied proof of insurance of the offending vehicle, plaintill has made out his prima facie case, and thc insurer must thcn provide proof that the iiist.rrance policy had been canceled Dep’t 1979). prior to thc date of tlie accident. S’cc Viziker Allstute Ins. Cu.. 70 AD2d 295, 298-299 (2’ld Here, GEICIO alleges that the InGnili was insured by Acceptance on the date of tlic Sub-jcct Accident, and was, at some point prior to the Subject Accident, insurcd by Liberty Mutual. I n support of its motion, GEICO polfers, infer d i u , a copy of the Arbitration Demand, the Police Ilcport, the Acceptance Disclaimer Leller, and a vehicle identification number search with the Department of Motor Vehicles, which GEIC:O claim establishes that tlic Irifiniti was insured by Acceptance on the date of the Subject Accident and, at somc point, by Liberty Mutual. GEIC’O fLirlhcl- claims that Acceptance and Liberty Mutual have hiled to proffer evidence to establish that their rcspcctivc il-isurance polices WCK canceled, or properly disclaiiiwd, prior to the S d j e c t Accident. Acceptance and Wcstfall Auto claim that GEICO hiled t o obtain jurisdiction over Acceptance. I lowever, GElCO correctly argucs that no jurisdiction is iiccdcd over Acccptancc and Westtiill Auto as thcy are not yet parties to h i s procedirig. See Anierican 7’rmsit funs. Cu. v C.’willo, 307 AD2d 220, 220 4 [* 5] (1 Dep’t 2003). Jurisdiction over Acceptance and Westhll Auto is not necessary iintil they are added to this procecding by the court. Id. Acceptance and Westfall Auto do not contest that the Infiniti was insurcd by Acceptance. I-Iowever, they assert that coverage was disclaimed for the I n h i ti. In support of their assertion, Acceptance and Westfall Auto rely solely on the Acceptance Disclaimer Letler. However, “[m]ore than a bare assertion in a sclf-serving lctter is required to rebut the presumption of’ continuance.” Sunclzez v Mcrrylrind Casualty Co., 67 AD2d 68 1 , 68 1 (2‘”‘ Tlep’t 1979). Once (.MU) cstahlished that Acceptance insured the I n h i t i , “il became incumbent upon the insurer ...to go forward with proof of its ai’iirmativc defense that the policy had been cariceled prior l o the date of the occiirrence”. l4iikcr v Allstatc 70 AD2d 295, 299 his. C’o., Dcp’t 1070). I Icre, Acccptance and Wcstfall Auto incrcly statc that Acceptance disclaimed coverage lor lie Subject Accident. Sec Acceptance arid Weslfill Auto Alfiniitttion in Opposition, 17 4 and 12. Aside from Acceptance’s sell-serving letter, no evidence was provided to conclusively estrtblish that Acceptance properly clisclaimeci coverage. Since there is reason to believe that Acceptance insured the Infiniti and that Westfall Auto owiicd i t at the time of tlic Subject Accident, both should be made a party to this proceeding. Likewise, non-party Shayayev, should be niadc a party to this procccding as GEICO has established, tluough the Police Report, that Shayayev was driving the Infiniti at the time of the Subject Accident. Shayayev has not opposed GEICO’s motion. Liberty Mutual also opposes (.ZlC(.)’s motion, claiming that the auto insurance policy issued by 1,iberty Mutual, covering the Infiniti, was cancelled prior to the Subject Accident. In support of its opposition, Liberty Mutual proffcrs, inlei. alia, a copy of thc LibertyGuard Auto Policy Declarations, one elkclive January 8, 2010, showing covcragc for a 2001 Jlodgc Caravan as wcll as tlic Infiniti, and oiic effective May 14, 20 10, showing coverage only for a 200 1 Dodge Caravan arid eliminating coverage for 5 [* 6] the Infiniti. GEICO alleges that the documents proffcrcd by Liberty Mutual are in inadmissible lorin and would nccd to bc corroborated by an underwriter employed by Libcrty Mulual. ,Set Kcply Alhiiation to 1 Liberty Mutual Fire Insurance Company’s Affirmation in Opposition, 1 3. Ironically, GElCO provjdcs a Vehicle Identification Numbcr search conducted of the DepartrlletIt of Motor Vehicle rccords, attached as Exhibit D to its petition, in inadmissihlc form, allegedly cstablishing that Libcrty Mulunl jiisul-cd thc insured the Infiniti, GEICO must providc proof in admissible lnfiiiiti. ‘1’0 establish that Liberty Mulur-11 form. See Atlcri7lic h / l ~ r t u d Ins. C’o. v Cooper, 247 AD2d 209 (1 ’‘ I k p ’ t 1998). Thus, GEICW has failed to establish that Libcrty Mutual should be joined as a party to this proceeding. GEICO inistakcnly allcges that “[tlhe New York I)MV Re~istration/l’xpansion Record c o n h i i s that the Vehicle Identification Number. ..for the 2002 I n h i t i was registered to Libcrty M L I ~ U ~ IGrc rior Insurance Company ...p to thc date of the accidcnt ...[thus] warranting a trial.” Reply Afiiriiiation to I,ibcrty Mutual Firc Insurancc Cor-npany’s Affirmation in Opposition, 7 4. GEICO relies on Viziker v AIlstutc h s . Cu., AD2d 295 (2”“ Dcp’t I079), for the proposition lhat tlic burden shifts lo 1,ibcrty 70 Mutual once CXTCO has establishcd that Liberty Mutual insured the Iiifiniti at some point prior to thc Subject Accident. Howevcr, cvcii taking GCIC(I)’s inadmissible documentation into consideration, this court notes that the records pl-offcred by GGJCO, in Exhibit r> olits petition, states that thc 1.ibcrty Mutual auto insurance policy covering the Infiniti was cancelled cffcclive May 14, 201 0, six m o n k prior to tlic Subject Accident. Notably, GEICO’s own Petition admits that thc Iniiniti cLwas insurcd with Liberty M L I ~ U ~ Fire Insurance Company [which] was cancelled ef.Xectivc5/14/10.’’ Petilinn, 1 8. Evcn i f 1 GEICO’s proofwas in admissiblc form, this court must take the document in its entirety. As a wholc, thc documentation prolfered by GI:;ICO establishes that 1,ibcrty Mutual did not insurc the I n h i t i at thc timc ofthe Subject Accident. As such, CiETCO’s petition, to the extent that it seeks to join 1,ibcrty Mutual as a party 10 this proceeding, is denied. 6 [* 7] Similarly, hghabrtbayev should not be joined as 3 party, as GEICO has not established that he owned the Infiniti at the time of the Subject Accident. GEICO rnercly claims that Aghababayev previously owned the vchiclc. In fact, GIiICO admits that Wcstfall Auto owiicd the Infiniti at the time of the Sub-jcctAccidcnt. ,See Petjtinti, 7 5 . While Aghababayev does not oppose GETCO’s motion, GI-<IC0 not established that Aghababayev eithcr owned or liad thc Iniiniti iiisured at thc time of thc has Subject Accidcnt. ‘I’tius,the portion of GEICO’s petition seeking to join Aghababayev is dcnied. I-Ierc,respondent Gorobetz consents to a temporary stay ol‘thc arbitration pending a framed issue hearing. As there remains a question of whcthcr Acceptance effectively disclaiimd coverage, the liifiniti may have bccii insured by Acceptance at the timc of thc Subject Accident, and thus, a framed issue hearing is appropriate. GEICO’s motion, lo the extent that it seeks a tcr-uporaiy stay of arbitration, is granted . Accordingly, it is C>RI)EKET) that the pctition is granted to thc exteril ;is i’ollows: ORDERED that respondent Tntiana Gorobctz shall to submit to an examination under oath and an independent medical exrtnitiation, to be schedulcd with petitioner Government Employees Insuraiice Cotlipany within 60 days of service hereof’; and it is further ORnEREI) that, upon coiupliance of the below by petitioner, that this matter is assigned to the Office oftlie Supervising Referee for designation o f a Special Kcferce l o hear and report wilh recommendation, or if. the parties agree by stipulation to hcar and determine, the issue ol‘ whether the olfending vehicle was insurcd at the time of tlic accident; il is lin-thcr ORDERT-31)that arbitration is stayed pending such heiirjng and final deterinination on the above issue; it is furthcr OlCDEREl3 llint within 45 days from thc date of this order, tlic petitioner is directed to 7 [* 8] file with the Clerk of'the Office of. Supervising Kcf'eree a copy of. this order with noticc of entry and proof of servicc upon all parties, and shall pay the appropriate fces, il'any, and said Clerk is dircctcd to assign and schcdde this matter for a hearing bel'ore a Special Referee in accordance with this decision and order; it is fiirtlicr ORDERED that this procecding shall be dismissed il' thc petitiolicr does riot coinply with the above paragraph with respec1 to service of tl copy of h i s order; it is further ORDI+;REDthat petitioncr shall serve a copy o r this order, with noticc ofcnlry, upon all parties and the arbitrator within 30 days of entry hereof; and it is furlher 0 RDERI:I 1 that A cce p t aiicc I ndemnity I nsuran ce Company , West fa1I A i i t o S a1cs , and Eldar A. Shayaycv shall hc added as parly respondents upon proper service on said party respondents of a copy of this order with notice of entry together with copies of all papcrs previously served in the procccding, it is fiirther ORDERED that [he caption of this procccding is amended to rcflcct thc iiiclusion of said additional party respondcnts, which shall read as follows: GOVEKN MENT EMPLOYEES INSU IIANCE CUM I'ANY, I'etitioncr, TA'I'IANA GOKOBETZ,ELDAJi A. SHAYAYEV, WES'I'E'ALL A11'1'0 SALES, and ACCEPTANCE TNDEMNII'Y JNSUIUNCE C,'OMPANY, Rcspndents, <andthc Clerk ol: the Court and the Clerk of the Trial Support Office, upon service on each of them of a copy of this order with notice of cntry and proof ol'scrvice thereof, shall mark their records to reflect the [* 9] amendment:; and it is rui-tlicr CJRDEIIED that within 45 days from the date ol'tliis order, petitioner sliall serve a copy oi'this dccision and order q o i i thc Clcrk ol' [he Court and thc C'lerk ol' tho Trial Support Office, with proof ol' service upon all parlies with riotice of entry. This constitutes the dccisiori and order of this Court. Check one: [ X 1 FJNAL DISPOSITION Check if Appropriate: ] DO NOT POST J \Aibiu-al~oi~-AVK\Cil~ICC~ Y Gurvbclr - ' ~ l d y dib, SUL, join ] ~ n r t ~ z s . w l ~ I 9 [* 10] Upon t,Re foregoing papers, it I:; ordmcil that this rnatlori is i: f.L+rYd: , -* I I.CHECK ONE: ..................................................................... K X S E DISPOSED 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: TION ON IS*: ............................................... ;b%!, PrPep,qL;[ I 1 k ' , dLfi;, NOM-FitbAL b l S ~ S l T l O N GRANTED UDENIED IJ GRANTED IN PART 0OTHER 1-1 SETTLE ORDER 0SUBMIT ORDER ~1DO NOT POST I FIDUCIARY APPOINTMENT r -I REFERENCE [