Matter of Hartford Ins. Co. v Mulcahy
Annotate this CaseDecided on November 4, 2010
Supreme Court, Suffolk County
In the Matter of the Application of Hartford Insurance Company, Petitioner(s), For a Judgment Staying the Arbitration Commenced
against
by Priscilla Mulcahy, Respondent(s) Geico Insurance Co., Shaun S. Faraday and Wahab Belo-Osagie, Proposed Additional Respondents.
25712-2009
John T. Ryan & Associates
Attorneys for Petitioner
633 East Main Street Riverhead, New York 11901
Cellino & Barnes
Attorneys for Respondent
68 South Service Road
Melville, New York 11747
Law Office of Gail S. Lauzon
Attorney for Geico Indemnity Company
875 Merrick Avenue
Westbury, New York 11590-6603
Shaun S. Faraday
2117 Buffalo Road
Rochester, New York 14624
Wahab M. Belo-Osagie
349 Virginia Avenue
Elmont, New York 11003
Peter H. Mayer, J.
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the petition (001) by Hartford Insurance Company for an order permanently staying the arbitration for uninsured motorist benefits demanded by respondent Priscilla Mulcahy pursuant to CPLR §7503 is granted and the arbitration is permanently stayed; and it is further
ORDERED that the petitioner shall promptly serve a copy of this Order upon counsel for all parties by first class mail, and shall promptly thereafter file the affidavit(s) of such service with the County Clerk.
In this action, petitioner, Hartford Insurance Company, seeks an order pursuant to CPLR §7503 permanently staying uninsured motorist arbitration demanded by its insured, respondent Priscilla Mulcahy. On December 13, 2006, respondent Mulcahy was operating a motor vehicle insured by Hartford when she was involved in a motor vehicle accident with a vehicle owned by additional respondent, Shaun S. Faraday, and operated by additional respondent Wahab M. Belo-Osagie. It is undisputed that at the time of the accident, the Faraday vehicle was insured by additional respondent, GEICO Insurance Company. In a one page affirmation in opposition, counsel for GEICO contends that GEICO had disclaimed coverage for the loss on the basis of late notice, in that GEICO first received notice of the accident on December 26, 2008, more than two years after [*2]it occurred.
It is well-settled that once the petitioner meets the burden of establishing, prima facie, that the vehicle in question was covered by the additional respondent insurer at the time of the subject accident, the burden shifts to that additional respondent to establish lack of coverage or a timely and valid disclaimer of coverage (State Farm Mut. Auto. Ins. Co. v Mazyck, 48 AD3d 580, 849 NYS2d 906 [2d Dept 2008]; Eagle Ins. Co. v Rodriguez, 15 AD3d 399, 790 NYS2d 167 [2d Dept 2005]; Allstate Ins. Co. v Frederick, 266 AD2d 283, 698 NYS2d 266 [2d Dept 1999]). In support of the contention that GEICO disclaimed coverage for the subject accident, counsel for GEICO annexes to her affirmation a purported GEICO disclaimer letter, dated February 16, 2009. The letter, however, is unsworn and unsupported by an affidavit from the party insurer. As such, the disclaimer is not proper evidence upon which the Court may rely sufficient to find that such disclaimer was valid (see Great Atlantic Ins. Co. v Shepard, 89 AD2d 832, 454 NYS2d 1 [1st Dept 1982]).
Even if the disclaimer were in proper evidentiary form, GEICO has failed to show that the alleged noncooperation disclaimer was otherwise valid. In this regard, to effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate that: (1) it acted diligently in seeking to bring about the insured's cooperation; (2) the efforts employed by the insurer were reasonably calculated to obtain the insured's cooperation; and (3) the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 225 NE2d 503, 278 NYS2d 793 [1967]; Preferred Mut. Ins. Co. v SAV Carpentry, Inc., 44 AD3d 921, 844 NYS2d 363 [2d Dept 2007]; Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605, 792 NYS2d 549 [2d Dept 2005]; Pawtucket Mut. Ins. Co. v Soler, 184 AD2d 498, 584 NYS2d 192 [2d Dept 1992]). Accordingly, the disclaiming insurer must sustain the very heavy burden of demonstrating that the insured's alleged failure to cooperate was deliberate (see Mount Vernon Fire Ins. Co. v 170 E. 106th St. Realty Corp., 212 AD2d 419, 622 NYS2d 758 [1995]). Mere inaction by an insured will not, by itself, justify a disclaimer of coverage on the ground of lack of cooperation (New York State Ins. Fund v Merchants Ins. Co. of N.H., 5 AD3d 449, 773 NYS2d 431 [2d Dept 2004]; Pawtucket Mut. Ins. Co. v Soler, supra ).
Here, there has been an undisputed prima facie showing that the GEICO policy for the Faraday vehicle was in effect at the time the subject accident occurred. Nevertheless, GEICO's one page opposition fails to demonstrate that it made diligent efforts which were reasonably calculated to secure its insured cooperation, or that its insured's attitude in allegedly failing to cooperate was one of "willful and avowed obstruction" (see Thrasher v United States Liab. Ins. Co., supra ; Preferred Mut. Ins. Co. v SAV Carpentry, Inc., supra ; Allstate Ins. Co. v United Intl. Ins. Co., supra ; Pawtucket Mut. Ins. Co. v Soler, supra ). Therefore, GEICO has not established a valid disclaimer of coverage (State Farm Mut. Auto. Ins. Co. v Mazyck, 48 AD3d 580, 849 NYS2d 906 [2d Dept 2008]; Eagle Ins. Co. v Rodriguez, 15 AD3d 399, 790 NYS2d 167 [2d Dept 2005]; Allstate Ins. Co. v Frederick, 266 AD2d 283, 698 NYS2d 266 [2d Dept 1999]). Consequently, Hartford's petition is granted and the arbitration for uninsured motorist benefits demanded by respondent Mulcahy pursuant to CPLR §7503 is permanently stayed. [*3]
This constitutes the Order and Judgment of the Court.
Dated:November 4, 2010
PETER H. MAYER, J.S.C.
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