New York Cent. Mut. Fire Ins. Co. v Josue

[*1] New York Cent. Mut. Fire Ins. Co. v Josue 2007 NY Slip Op 51142(U) [15 Misc 3d 1144(A)] Decided on June 1, 2007 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2007
Supreme Court, Kings County

New York Central Mutual Fire Insurance Company, Petitioner,

against

Aurelise Josue, Respondent



33490/06

Francois A. Rivera, J.

By notice of petition filed on November 3, 2006, New York Central Mutual Fire Insurance Company (hereinafter petitioner or New York Central) moves for an order permanently staying uninsured motorist arbitration. Petitioner also seeks, in the alternative, an order joining Randy Bussey (Bussey) and Motor Vehicle Accident And Indemnity Corporation (hereinafter MVAIC), an order temporarily staying arbitration and directing a framed issue hearing on all issues material to this petition. If a framed issue hearing is ordered, petitioner seeks an order directing discovery thirty days prior to the framed issue hearing. If the matter is deemed to be a valid uninsured motorist claim, petitioner seeks pre-arbitration discovery.Respondent Aurelise Josue (hereinafter respondent or Josue) has demanded arbitration pursuant to the uninsured motorist provision of respondent Bussey's policy with petitioner. Respondent opposes the petition to stay uninsured motorist arbitration.

Motion Papers

Petitioner's motion papers consist of an affirmation of counsel and eleven annexed exhibits. Exhibit A is a summons and complaint in which Josue sues Bussey for seriously injuring her by his negligent operation of his vehicle on June 14, 2004. Exhibit B purports to be evidence of a an automobile policy issued to Bussey that was in effect on June 14, 2004. Exhibit C is a blank uninsured motorist endorsement form. Exhibit D is a letter dated September 2, 2004 from Josue's counsel to petitioner advising of their representation in connection with the accident of June 14, 2004. The letter requests an application for no fault benefits and the amount of Bussey's motor vehicle insurance coverage. Exhibit E purports to be a letter from petitioner to Bussey disclaiming insurance coverage. Exhibit F is a letter dated April 29, 2005 from Josue's [*2]counsel to petitioner advising of their intent to make an uninsured motorist claim. Exhibit G is a letter dated June 9, 2005 from petitioner to Josue's counsel denying uninsured motorist coverage based on its investigation and limitation language in Bussey's motor vehicle policy. Exhibit H purports to be a letter from the petitioner to Bussey denying coverage for the subject accident. Exhibit I is a letter dated October 16, 2006 from Josue's counsel to petitioner demanding uninsured motorist arbitration. Exhibit J is purportedly a statement from Bussey about the accident. Exhibit K is purportedly a statement from an eyewitness to the accident.

Counsel for Josue's and MVAIC both submitted affirmations in opposition contending that petitioner's motion papers were insufficient to warrant any of the relief requested.

Petitioner objected to supplemental opposition papers served upon it by Josue's counsel claiming that it served without leave of the court. For the reasons set forth below, the court did not consider the supplemental opposition papers of Josue's counsel. Petitioner submitted an affirmation in reply contending that the opposition papers of Josue and MVAIC are themselves insufficient to oppose the petition.

FACTS

This action arises out of an automobile accident that occurred on June 14, 2004. Respondent Aurelise Josue alleges that while attempting to enter a vehicle operated by Bussey, Bussey suddenly pulled away causing her to fall. There is no dispute that Josue served a demand for uninsured motorist arbitration on petitioner. In response to the demand for arbitration, petitioner served this petition to stay arbitration.

LAW AND APPLICATION

Petitioner by the instant petition has commenced a special proceeding to permanently stay an arbitration. The petition in a special proceeding is analogous to the complaint in an action. CPLR §402 governs the pleadings requirements for special proceedings and provides as follows: There shall be a petition, which shall comply with the requirements for a complaint in an action, and an answer where there is an adverse party. There shall be a reply to a counterclaim denominated as such and there may be a reply to new matter in the answer in any case. The court may permit such other pleadings as are authorized in an action upon such terms as it may specify. Where there is no adverse party the petition shall state the result of any prior application for similar relief and shall specify the new facts, if any, that were not previously shown.

The procedure for special proceedings contemplates that the petition will be accompanied by affidavits demonstrating the evidentiary grounds for the relief requested (See CPLR §403[a]). The purpose of the affidavits is to enable the matter to be brought before the court for summary disposition, as in the case of motion practice.

CPLR § Rule 2214 provides as follows:

Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

Petitioner's motion paper contain the following deficiencies. Contrary to the [*3]requirements of CPLR §2214, petitioner did not set forth what law or statute it is invoking to obtain the relief of a stay of arbitration or to add the proposed additional respondents. The petition is verified by petitioner's counsel and contains allegations of fact based on information and belief. The petition may therefore, not serve as an affidavit of petitioner (see CPLR § 105(u); Worldwide Assets Publishing LLC v. Karafotias, 9 Misc 3d 390 [Civ. Ct., Kings County 2005, Battaglia, J.]).

Inasmuch as the petition is only supported by an affirmation of petitioner's counsel and contains no allegation of fact based on personal knowledge, it is not evidence of any of the matters asserted (see Brusco v. Braun, 199 AD2d 27 at 31-32 [First Dept 1993]). However, the affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may of course, serve as a vehicle for the submission of acceptable attachment which do provide evidentiary proof in admissible form' e.g. documents, transcripts(Worldwide Assets Publishing LLC v. Karafotias, supra, 9 Misc 3d at 395 citing Zuckerman v. City of New York, 49 NY2d 563 [1980]).

The next inquiry is then whether the attachments to the petition present evidentiary proof in admissible form. Petitioner's request for a stay of arbitration is premised on a claim that Josue was not injured while an occupant of the vehicle operated by Bussey and, therefore, is not an insured person under the definition language contained in Bussey's uninsured motorist endorsement to his motor vehicle policy. The petitioner, however, did not annex either Bussy's motor vehicle policy or the uninsured motorist endorsement. Instead, it annexed a blank uninsured motorist form and a document which purports to prove Bussey's motor vehicle coverage but does not do so.

Also referenced in support of this contention was exhibit J and K which are purportedly a statement from Randy Bussey and a statement from an eyewitness regarding the subject accident. Careful examination of both statements reveal that they are not affidavits. An affidavit is any voluntary statement reduced to writing, signed by the party making the statement, and sworn to or affirmed before some person authorized by law to administer an oath or affirmation (1 NY JUR 2d Acknowledgments §35). Neither statement contains an acknowledgment that the statement is submitted under oath or under penalty of perjury. Furthermore, the party whom the statement is made before is described as an investigator and not a notary public or other person authorized by law to administer an oath. Therefore, neither statement is in admissible form or has any probative value.

Petitioner seeks an order permanent staying the uninsured motorist arbitration and a temporary stay and a direction for a framed issue gearing as well as discovery for said framed issue hearing. Once again, the application for a temporary stay, a framed issue hearing and court ordered discovery is not supported by allegations of fact by anyone with personal knowledge.While it would be appropriate for the court to direct compliance with all outstanding discovery demands prior to the arbitration going forward, there is no claim that petitioner made any discovery demands before seeking this relief. Furthermore, contrary to the requirements of CPLR §2214, petitioner has not set forth any law or statute which would support an order for granting discovery without first making a discovery demand of the adverse party.

The affirmations of Josue and MVAIC counsel in opposition which assert that petitioner's motion papers are insufficient to support the relief requested is correct.Petitioner's application for a permanent or temporary stay of uninsured motorist arbitration is denied. [*4]Petitioner's application to add Bussey as a proposed additional respondent is granted as unopposed. Petitioner's application to add MVAIC as an additional respondent is denied.

The foregoing constitutes the decision and order of the court.

_______________________________

J.S.C.