Matter of GEICO v Selin

Matter of Matter of GEICO v Selin 2014 NY Slip Op 04928 Decided on July 2, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 2, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.
2013-07233
(Ind. No. 16258/12)

[*1]In the Matter of GEICO, respondent,

v

Diane Selin, appellant.

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Gail S. Lauzon (McNicholas, Lee & Cestaro, P.C., Flushing, N.Y. [Shawn M. Cestaro], of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Diane Selin appeals from an order of the Supreme Court, Kings County (Sunshine, Ct. Atty. Ref.), dated June 10, 2013, which after a hearing, granted the petition and permanently stayed arbitration.

ORDERED that the order is affirmed, with costs.

The appellant sought uninsured motorist benefits, under a policy of insurance issued by the petitioner, for physical injuries she allegedly sustained in a hit-and-run accident. The petitioner commenced this proceeding pursuant to CPLR article 75 to permanently stay the arbitration of the claim.

Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle (see Insurance Law § 5217; Matter of Allstate Ins. Co. v Killakey, 78 NY2d 325, 328; Matter of Motor Veh. Acc. Indem. Corp. v Eisenberg, 18 NY2d 1, 3; Matter of Progressive Specialty Ins. Co. v Lubeck, 111 AD3d 947; Matter of Nova Cas. Co. v Musco, 48 AD3d 572, 573). "The insured has the burden of establishing that the loss sustained was caused by an uninsured vehicle, namely, that physical contact occurred, that the identity of the owner and operator of the offending vehicle could not be ascertained, and that the insured's efforts to ascertain such identity were reasonable" (Matter of Nova Cas. Co. v Musco, 48 AD3d at 573).

Where, as here, a case is determined after a hearing, this Court's power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing court had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Matter of Progressive Specialty Ins. Co. v Lubeck, 111 AD3d at 948; Matter of Allstate Ins. Co. v Tae Hong Ji, 81 AD3d 940). We decline to disturb the Supreme Court's determination, made after a hearing, that there was no physical contact between the appellant's vehicle and an alleged hit-and-run vehicle (see Matter of Government Employees Ins. Co. v Tuzzo, 94 AD3d 996; Matter of Government Employees Ins. Co. v Albino, 91 AD3d 870; Matter of Allstate Ins. Co. v Tae Hong Ji, 81 AD3d at 940).

Accordingly, the Supreme Court properly granted the petition and permanently stayed arbitration.

HALL, J.P., ROMAN, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court