Nationwide Affinity Insur. Co. (Lopez)

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Nationwide Affinity Insur. Co. (Lopez) 2017 NY Slip Op 31053(U) April 4, 2017 Supreme Court, Suffolk County Docket Number: 09920/2016 Judge: William G. Ford Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX NO.: 09920/2016 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 38- SUFFOLK COUNTY a~~ ~/#~f} PRESENT: HON. WILLIAM G. FORD JUSTICE SUPREME COURT Motion Submit Date: 12/22/16 Motion Seq #: 001 Mot D In the Matter of the Application of PLAINTIFF'S ATTORNEY: Gialleonardo Frankini & Harms 330 Old Country Rd., Suite 200 Mineola, NY 11501 NATIONWIDE AFFINITY INSURANCE COMPANY, Petiti~er, DEFENDANT'S ATTORNEY: Cannon & Acosta, LLP. 1923 New York Ave. Huntington, NY 11746 For a Judgment Staying the Arbit~ation Commenced by RIGOBERTO LOPEZ, Respondent, -&- ANTHONY MANNESE & ALLMERICA FINANCIAL INSURANCE COMPANY, Proposed Additional Respondents. Concerning Petitioner's application pursuant to CPLR 7503 to stay pending insurance arbitration, the Court has considered the following papers in reaching its determination as · follows: 1. Petitioner's Notice of Petition pursuant to CPLR 7503(c) dated October 17, 2016; Verified Petition of Andrew J. Frank, Esq. dated October 17, 2016; Exhibits A - E; 2. Respondent's Affirmation in Opposition of Roger Acosta, Esq. dated October 28, 2016; Exhibits A- D; 3. Reply Affirmation in Further Support dated November 10, 2016; Exhibit F; it is 1 ~ r [* 2] OROF:REO that the Verified Petition brought before this Court pursuant to CPLR 7503(c) seeking to permanently stay a pending liability automobile insurance arbitration. or in the alternative for an order temporarily staying the same and an order compelling respondent to comply with pre-arbitration discovery is determined as follows. This matter is pending before this Court on the Petition brought by petitioner Nationwide Affinity Insurance Company (.. petitioner" or "Nationwide'') pursuant to CPLR 7503(c) to stay pend ing insurance arbitration before the American Arbitration Association (.. AAA") concerning respondent Rigoberto Lopez ("respondent"' or ''Lopez") demand for SUM arbitration. This special proceeding arises out of a motor vehicle accident which occurred on February 4, 2016 on Motor Parkway at or near the intersection with Washington Avenue in the Town of Islip. County of Suffolk, New York involving Lopez and proposed additional respondent Anthony Mannese ('·Mannese"). Lopez has alleged that he was hit in the rear and that Mannese fled the scene of the accident rendering the incident a "hit and run" accident. Further, Lopez has applied for no-fault benefits and made a claim for underinsured motorist benefits under his liability insurance policy issued by petitioner. On the papers presently before the Court, the record reflects that Lopez is a Nationwide insured under Policy Number 6631 F374566, which was in effoct at the time of the incident referenced above. To wit. Nationwide"s policy with Lopez states a pertinent to this proceeding that in the event an insured makes a supplementary underinsured or underinsured motorist benefits claim that: The insured and every other person making claim hereunder shall, as may reasonably be required. submit to examinations under oath by any person we name and subscribe the same .... The insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require. The insured .. .. Shall upon each request from us authorize us to obtain relevant medical reports and copies of relevant records. If any insured making claim under this SUM coverage and we do not agree that such insured is legally entitled to recover damages from the owner or operator of an uninsured motor vehide because of bodily injury sustained by the insured, or do not agree as to the amount of payment that may be owing under this SUM coverage, then at the option and upon written demand o such insured, the matter of matters upon which such insured and we do not agreed shall be settled by arbitration administered by the American Arbitration Association .. . The Court takes note that petitioner's policy to respondent clearly notes that its home office is located in Columbus, Ohio 43215-2220. Nationwide seeks to stay the arbitration on the theory that Lopez has failed to cooperate or otherwise satisfy pol icy conditions precedent entitling him to proceed to arbitration on his 2 [* 3] claim, narnely by cornplying with pre-arbitration discovery requests dated October 14, 2016 seeking an exam ination before trial under oath. independent medical examination. and the provision of medical records and/or authorizations to obtain the same. Thus petitioner argues that the document exists as prima facie evidence raising a material and triable issue of fact on whether Mannese had liability insurance in place at the time or the accident. necessitating the request for a stay of arbitration. Petitioner further argues that respondent has failed to carry his burden of establishing lack of insurance coverage for Mannese ·s vehicle on the date in question, and thus cannot meet that condition precedent required prior to remitting this matter to arbitration. IN that regard, petitiom.:r submits a Suffolk County Police accident investigation report in amended form which it purports to indicate that Manncse operated a 2010 Dodge Ram truck hearing New York license plate number CNY-8650. insured by Allmerica Financial Alliance Insurance Company For his part, Lopez opposes the application arguing that Nationwide 's application is untimely under the 20 day statute oflimitation imposed by CPLR 7503. Lopez states that he by counsel served a Notice of lntent to Arbitrate dated February 25. 20 16 on Nationwide by facsimile and certified first class mail, return receipt requested which was delivered at claims otlicc associated with petitioner in Alabama on March 3. 2016. Respondent thus argues that the appropriate time period to measure timeliness here is from that notice, rather than the Demand for Arbitration filed with AAA on September 29, 2016. The instant proceeding was commenced with Iii ing of the notice of petition and veri tied petition on October 18. 20 16, several months and a significant time later than the statutory 20 day time period. Additionally. respondent argues that it has substantially complied with pctitioner·s discovery requests. all that being outstanding or remaining is Lopez appearing for o r submitting to an IME or ERT. Thus respondent argues he has complied w ith any preconditions standing in his way from arbitrating his claims against petitioner. "CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate·· (Mlltfer <>f Liberty Mut. Ins. Co. v. Zacharoudis, 65 A03d 1353, 1353-1 354. 885 NYS2d 610 [2d Dept 20091: see Matter of Fiveco, Inc. v. Hllher. 1 I NY3d 140, I 44 [2008): Matter of Lam/ of tlte Free v. U11ique Sll11i1<1tio11. 93 NY2d 942, 943 (1999]; Mlltter of Steck [State Fllrm J11s. Co.], 89 NY2d 1082, I 084 l 1996 ]). To be considered a valid notice of the intention to arbitrate. the notice must identi ly the agreement under which arbitration is sought and the name and address of the person serving the notice in addition to containing the statutory 20-day warning that failure to commence a proceeding to stay arbitration will preclude an o~jection to arbitration (see CPLR 7503fc I: Matter of Blamowski [1 l1unso11 Tra11Sp.], 91 NY2d 190, 195 l 1997 j: State Fllrm Mut. Auto. Ins. Co. v. Szwec. 36 AD2d 863, 321 NYS2d 800 [I 971J; Stllte Farm Mut. A uto. Ins. Co. v Urban. 78 AD3d l 064. I 065, 912 NYS2d 586, 587 [2d Dept 201 O]). Unless a party makes an application for a stay of arbitration within the statutory 2o-day period, CPLR 7503(c) generally precludes the party from objecting to the arbitration thereafter (see Hermitage ills. Co. v Escobar, 61 /\D3d 869, 869, 877 NYS2d 413. 414 [2d Dept 2009][internal citations omitted]). The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay'' (Matter of A11to011e Ins. Co. v. UmallZor. 74 AD3d 1335, 1336, 903 NYS.2d 253: see Matter of 3 [* 4] Metropo/it<m Prop. & Cas. Ins. Co. v. Si11gh, 98 AD3d 580, 581. 949 NYS2d 638). ThereaHcr, the burden is on the party opposing the stay to rebut the prima fac ie showing (see Matter of Metropolita11 Prop. & Cas. J11s. Co. v. Singh, 98 AD3d at 581. 949 N.Y.S.2d 638; Matter of American bttl. J1zs. Co. v. Giovanielli. 72 AD3d 948, 949, 900 NYS2d l 08). The uninsured motorist indorsemcnt of an insurance policy does not operate unless and until it has been established that there was no insurance coverage on the offending vehicle on the date of the accident (see Matter of Nationwide bzs. Co. v. Sil/num. 266 AD2d 551, 552, 699 NYS2d 98: Matter of State Farm Mut. brs. Co. v. Vazquez, 249 AD2d 312, 670 NYS2d 90 I: Matter of Eagle I11s. Co. v. Sadiq, 237 AD2d 605 , 655 NYS2d 601; New York Cent. Mut. Fire Ins. Co. v J11/ie11. 298 AD2d 587, 587, 749 NYS2d 73 , 74 [2d Dept 2002]). An unexcused and willful refusal to comply with disclosure requirements in an insurance policy is a material breach of the cooperation clause and precludes recovery on a claim (see Lentini Bros. Movi11g & Stor. Co. v. New York Prop. Ins. Underwriting Assn .. 53 NY2d 835, 837. 440 NYS2d 174; Baerga v. Translate Ins. Co., 213 AD2d 217, 623 NYS2d 587; 2423 Mermaid Realty Corp. v. New York Prop. I11s. Underwriting Assn., 142 AD2d 124, 130-132, 534 NYS2d 999; Ausch v. St. Paul Fire & Mar. Ins. Co., 125 AD2d 43, 50, 511 NYS.2d 919). Compliance with such a clause is a condition precedent to coverage, properly addressed by the court (see Matter of County of Rockland /Primiano Constr. Co. J. supra: compare Great Canal Realty Corp. v. Se11eca Ins. Co., I11c.. 5 NY3d 742, 800 NYS2d 521 ). , It is well settled that CPLR 3102(c) permits the Court to order discovery in aid of Arbitration. Second Department precedent acknowledges that an insurer is entitled to have a physical examination in situations similar to the case before the Court. See State Farm Mutual Automobile Ins. Co. v. Wernick, 90 AD2d 519, 455 NYS2d 30 (1982). Additionally, it is indeed a provident exercise of discretion for the Court to order a deposition and physical examination in aid of Arbitration. See State Farm Insurance Co. v. McMlmus , 249 AD2d 311. 670 NYS2d 599 (1998). A court may properly exercise its discretion in temporarily staying arbitration and ordering medical authorizations. discovery of medical records and reports, depositions and physical examination in aid of arbitration. Progressive Casualty Ins. v. Jackson , 49 AD3d 748 (2d Dept. 2008) ~ Matter ofState-Wide Insurmice Compa11y v. Womble, 25 AD3d 713 (2d Dept. 2006). The Second Department has clearly held that "physical contact is a condition precedent to an arbitration based upon a hit and run accident involving an unidentified vehicle" (Matter of Great N. Ins. Co. v. Balli11.ger. 303 AD2d 503, 504, 757 N.Y.S.2d 309; see Insurance Law § 5217; Matter of Allstate Ins. Co. v. Moshevev. 291 AD2d 401, 402, 737 NYS2d 118 ~ Matter of State Farm Mut. Auto. Ins. Co. v. Johnson , 287 AD2d 640. 732 NYS2d 21). ''The failure of the police accident report to mention contact with another vehicle raises a factual issue as to whether there actually was physical contact between insured's vehicle and a ' hit and run' vehicle'' (Matter of Midwest Mut. Ins. Co.. 64 AD2d 985 , 408 NYS2d 822; see Matter of Bisig11ano v. Interboro Miii. lndem. I11s. Co., 235 AD2d 419, 420, 652 NYS2d 546; Matter of Allstate Ins. Co. v. Weiss, 178 AD2d 529, 577 NYS2d 3 19). Therefore, a framed issue hearing is necessitated to resolve such a material issue of fact (Eveready Ins. Co. v Scott, l AD3d 436, 437-38, 767 NYS2d 31, 32- 33 [2d Dept 2003]; see also New York Cent. Mut. Fire Ins. Co. v 4 [* 5] VenU>, 63 AD3d 84L 843-44, 882 NYS2d 126, 128 12d Dept 2009]f''[p]hysical contact is a cond ition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle.. thus "'[w]hen there is an issue of fact as to whether physical contact occurred. a hearing on the issue must be conducted .. I). Production of a police accident report containing the vehicle's insurance code satisfies petitioner's prima .facie burden of production that the proposed additional respondent insured the offending vehicle (see Matter of Eagle lns. Co. v. Rodriguez, 15 A03d 399, 790 NYS2d 167: Matter of Liberty Mut. Ins. Co. v. McDonald. 6 AD3d 614, 615. 775 NYS2d 83; Matter of Eagle /us. Co. v. Beauvil. 297 AD2d 736, 747 NYS2d 774; Utica Mut. /us. Co. v Co/011 , 25 AD3d 617, 618. 807 NYS2d 634. 635 (2d Dept 2006]; New York Cent. Mui. Fire Ins. Co. v Licata. 24 AD3d 450. 45 L 807 NYS2d 380. 38 l f2d Dept 20051). The determination as to whether a vehic le is underinsured is made by comparing the bodi ly injury li mits of the claimant's insurance policy with the bodily injury limits of the tortfeasor·s policy (Allstate Ins. Co. v DeMorato, 262 AD2d 557. 694 NYS2d 67 (2d Dept 1999)), and coverage is avai lable only when the bod ily injury li mits of liability of the tortfeasor's insurance policy are less than the bodily injury limits of liabil ity of the insured's policy (see Matter of Stttte Farm Mutual A uto. Ins. Co. v Roth, 206 AD2d 376. 613 NYS2d 713 [2d Dept 1994]). Based on all of the parties' arguments and the record. this Court finds that petitioner had knowledge sufficient to have brought this application on receipt of respondent's notice of intention to arbitrate. and thus this application is untimely. Nevertheless, this Court w ill grant the petition in part solely to the extent that pursuant to CPLR 3 102(c) this Court hereby issues an o rder compelling respondent to comply with petitioner's outstanding pre-arbitration requests to produce, namely. to comply with and submit to an IME and EBT, and thus the pending SUM arbitration before /\AA is stayed for a period of time not to exceed 90 days. Therefore, respondent shall have complied w ith these requests and requirements on or before July 7. 20 I ?(see (see Matter of State Farm Mut. A utomobile Ins. Co. v Wernick, 90 J\D2d 519, 455 NYS2d 30 12d Dept 1982); All'itate Ins. Co. v Baez, 269 AD2d 392, 702 NYS2d 878 [2d Dept 2000]). Further. since this Court finds that the question of availability of insurance concerning Manncse' s vehicle to be hotly contest and ripe for review. Accordingly, this Comt determines that independent and adequate grounds exis t to stay the pending SUM arbitration for the purposes of a framed issue hearing before this Court to determine whether or not Mannese's vehjcle was indeed insured at the time of the accident forming the gravamen of this proceeding. Accordingly, it is ORDERED that the parties appear before this Court for the purposes of a framed issue hearing to be held on or before September 11, 2017; and it is further ORDERED that the Verified Petition is hereby amended to add as additional proposed respondents Anthony Mannesc and A llmerica Financial Insurance Company; and it is further 5 [* 6] ORDERED that petitioner served a copy of this order with notice of entry on respondent and additional respondents on or before April 28. 2017. The fo regoing constitutes the decision and o rder of th js Court. ~-=:> Dated: April 4. 2017 WILLIAM G. FORD, J .S.C. FINAL DISPOSITION _X_ NON- FINAL DISPOSITION 6

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