Matter of Government Employees Insurance Company v Maria Dellaporte

Matter of Government Empls. Ins. Co. v Dellaporte 2003 NY Slip Op 19506 [2 AD3d 636] December 15, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Government Employees Insurance Company, Respondent,
v
Maria Dellaporte, Respondent, and Bobby Management Corp., Respondent. American Transit Ins. Co., Nonparty Appellant.

—In a proceeding pursuant to CPLR article 75 to stay arbitration of a claim for uninsured motorist benefits, American Transit Ins. Co. appeals from a judgment of the Supreme Court, Nassau County (O'Shaughnessy, J.H.O.), entered November 7, 2002, which granted the petition.

Ordered that the judgment is affirmed, with one bill of costs payable to Government Employees Insurance Company and Maria Dellaporte.

The appellant contends that the Supreme Court erred in staying arbitration of the claimant's demand for uninsured motorist benefits because there is insufficient evidence in the record to establish that the accident took place while she was a passenger in a vehicle owned by its insured. However, neither the appellant nor its insured contested the identity of the offending vehicle in the Supreme Court, and did not raise this issue during the framed issue hearing. Accordingly, the appellant's contention is not properly before this Court (see Matter of Allstate Ins. Co. v Cotten, 233 AD2d 500 [1996]). S. Miller, J.P., Krausman, Townes and Cozier, JJ., concur.