Matter of Nationwide Ins. Co. v Hernandez

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Matter of Nationwide Ins. Co. v Hernandez 2012 NY Slip Op 31306(U) May 11, 2012 Sup Ct, NY County Docket Number: 112943/11 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 511712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK J.S. cw Index Number : 112943/201I NATIONWIDE MUTUAL INSURANCE f PART vs HERNANDEZ, CHRISTOPHER INDEX NO. Sequence Number : 001 MOTION DATE COMPEL OR STAY ARBITRATION MOTION 9E9. NO. L _ h L # i The followlng papen, numbered 1 to Notlce of MoUonlOrdor to Show Cause Anaworlng Amdavitn 97 , were mad on thls motlon tolfor -Affldavlk - Exhlblts INW. - Exhlblk I ReplylnQAffldavtb Upon the foregoing paper$, It Is ordered that thlr motlon Is COIJNTY YORK CLERK'S OFFICE ,J.S.C. 8. PR ..................................................................... 0 CASE DISPOSED fioN-FiNAL DisPos TiON 2. CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S [3 DENIED 0GRANTED IN PART & L 3. CHECK IF APPROPRIATE: ................................................ 0SUBMIT ORDER SEllLE ORDER 0DO NOT POST [I3 FIDUCIARY APPOINTMENT REFERENCE 1. CHECK ONE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 In the Matter of the Application of NATIONWIDE Index No. 112943111 INSURANCE COMPANY, Motion Date: 2/28/12 Motion Seq. Nos.: 001, Petitioner, -against DECISION & JUDGMENT For a Judgment Staying the Arbitration Commenced by CHRISTOPHER HERNANDEZ, Respondent, OCEAN HARBOR CASUALTY INSURANCE COMPANY, STATE FARM MUTUAL INSURANCE COMPANY, ELRAC INC., ELCO ADMINISTRATIVE SERVICE COMPANY, ENTERPRISE HOLDINGS, INC., SENTRY INSURANCE, LOUIS RODRIGUEZ, MALICK SOW, MOHAMED SILLAN, CHRISTINA H. ENDICOTT, For petitioner: Michael A. Buffa, Esq. Epstein, Harms & McDonald 1 Whitehall St., 13IhF1. New York, NY 10004 2 12-248-9100 For State FarmEndicott: Richard Halpern, Esq. Richard T.Lau & Assocs. PO Box 9040 300 Jericho Quadrangle East Jericho, NY 11753 5 16-229-6000 For Hernandez: Robert J. Greenstein, Esq. FILED M 1 6 2012 Y NEW YORK COUNTY CLERKS OFFICE Greenstein & Milbauer, LLP 1825 Park Ave., 91hF1. New York, NY 10035 For Ocean Harbor: Raymond Law, Esq. Jaffe & Koumourdas 40 Wall St., 3rdF1. New York, NY 10005 2 12-685-8500 2 12-809-7800 For Sentry: Michael J. Pender, Esq. Hammill, O'Brien, et al. 6851 Jericho Tpke., Ste. 250 PO Box 1306 Syosset, NY 11791 For ElracA3lcoEnterprise: Lauren M. Piacentini, Esq. Carman, Callahan & Ingham, LLP 266 Main St. Farmingdale, NY 11735 5 16-249-3450 5 16-746-0707 By notice of petition and verified petition dated November 14,2011, petitioner moves for a judgment staying arbitration between it and respondents and adding the proposed additional [* 3] respondents to the proceeding. Respondent Hernandez and proposed respondents Country-Wide Management Services as third-party administrator for Ocean Harbor Casualty Insurance Company (Ocean Harbor), State Farm Mutual Automobile Insurance Company sMa State Farm Mutual Insurance Company (State Farm), Endicott, Sentry Insurance Company (Sentry), Elrac Inc. (Elrac), Elco Administrative Service Company (Elco), and Enterprise Holdings, Inc. (Enterprise) (Elrac, collectively) oppose the petition. By notice of motion dated January 24,2012, petitioner moves for m order permitting it to amend its petition to add Elrac, LLC as an additional respondent in the proceeding. Elrac, LLC opposes the motion. The proceeding and motion are consolidated for decision. I. PETITION TO STAY ARBITMTION A Background According to the pertinent police report, on December 2 1,2009, at the intersection of East 13ShStreet and Lincoln Avenue in Manhattan, a vehicle driven by Louie Rodriguez and registered to Elrac, Inc. came to a stop behind a school bus with flashing lights. A vehicle driven by and registered to Christina Endicott then struck a vehicle driven by and registered to Anthony Acevedo, causing it to strike a vehicle driven by Malick Sow and registered to Mohamed Sillah, which then struck Rodriguez s vehicle. (Petition, dated Nov. 14, 201 1 [Pet. J, Exh. B). Hernandez was a passenger in Acevedo s vehicle. (Id,). The police report of the accident reflects that Rodriguez s vehicle was self-insured and that the other three vehicles were insured, (Id,). On or about February 3,2010, Hernandez served petitioner with a notice of claim and demand for arbitration. (Id., Exh. A). 2 [* 4] B. Analysis Petitioner asserts that the arbitration should be stayed to the extent that Hernandez alleges that the other vehicles involved in the accident were uninsured, and contends, upon information and belief, that Enterprise insured Rodriguez s vehicle on behalf of Elrac and Rodriguez may have been insured by Ocean Harbor, that Endicott s vehicle was insured by State Farm, and that Sillah s vehicle was insured by Sentry. (Id.). Hernandez maintains that Sillah s vehicle was uninsured, as evidenced by a letter dated from Sentry dated October 20, 201 1 in which it denies that the vehicle was listed on an insurance policy issued by it before or after the accident. (Affirmation of Robert J. Greenstein, Esq., dated Nov. 16,201 1, Exh. C). He observes that petitioner submitted no proof that the vehicle was insured. (Id). Sentry denies that it insured the vehicle which Sillah was driving, as it cancelled his insurance policy on August 9,2009, four months before the accident, based on his failure to pay the insurance premiums. (Affirmation of Michael J. Pender, Esq., dated Jan. 19,2012; Affidavit of Amy S. Brunner, dated Jan. 12,2012; Exhs. A-D). In reply, petitioner argues that Sentry s proof of cancellation of the policy is not in admissible form. (Reply Affirmation, dated Jan. 24, 2012). As the validity of Sentry s notice of cancellation may not be determined on the papers, it is joined as a respondent and a framed issue hearing is directed. (See Mutter of Victoria Select Ins. Co. v Munar, 80 AD3d 707 [2d Dept 201 11 [in petition to stay arbitration of uninsured motorist benefits where parties submitted documents raising issues of fact as to cancellation of policy, joinder of proposed additional respondents as necessary parties for framed issue hearing 3 [* 5] proper]; Matter o f N I Cent. Mut. Ins. v Davalos, 39 AD3d 654 [2d Dept 20073 [same]; Matter : of N. Y. Cent. Mut. Fire Ins. Conv Hall, 7 AJ33d 629 [2d Dept 20041 [same]). ADDITION OF PROP0 SED RESPONDENTS As p e t i t i o n e r a t submi> ym to the opposition of proposed respondents Ocean m reply Harbor, State Farm, and Elrac related to their joinder in this proceeding, and as they establis that they are not proper parties here, the motion to add them as respondents is denied. 111. MOTION T0 AMEND As I have determined that Elrac is not a proper party here, there is no ground upon which to add Elrac, LLC, the entity now conducting business under Elrac s name, as a respondent. IV.CONCLUSION Accordingly, it is hereby ORDERED, that Nationwide Insurance Company s motion to join proposed additional respondents as parties to this action is granted only to the extent of joining Sentry Insurance as a respondent; and it is further ORDERED, that the arbitration in this matter is temporarily stayed pending a framed issue hearing; it is further ORDERED, that, within 60 days from the date of this order, Nationwide Insurance Company shall file with the Clerk of the Trial Support Office (Room 158) a copy of this order with notice of entry, a note of issue, and a statement of readiness, and shall pay the appropriate fees, if any; and it is hrther ORDERED, that the parties must mutually contact the court to schedule the hearing; and it is further 4 [* 6] ORDERED, that the motion to amend is denied. ENTER: Barbara Ja& JSC 'J DATED: May 11,2012 New York, New York f1,QBARA JAFFE J.S.C. FILED MAY 1 6 2012 NEW YORK COUNW CLERK'S OFFICE 5

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