Matter of Allstate Ins. Co. v Nahom

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Matter of Allstate Ins. Co. v Nahom 2014 NY Slip Op 30645(U) March 12, 2014 Sup Ct, NY County Docket Number: 650216/2014 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x I In the Matter of the Application of ALLSTATE INSURANCE COMPANY I I ' Petitioner, -against- I I Index No. 650216/2014 DECISION/ORDER RONEN NAHOM, Respondent, -andMATVEI CAB CORP, ALEKSANDR VOLOSHIN, FIDUCIARY INSURANCE COMPANY, JULES LEVINTHAL, JANET LEVENTHAL, GEICO GENERAL INSURANCE COMPANY, MARCAN TRANSPORTATION and EDITH MORGAN, Proposed Additional Respondents. -------------------------------------------------------------------x HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 22 l 9(a), of the papers considered in the review of this motion for: ~~~~~~~~~~~~~~~~~~ I Papers Numbered ·t Notice of Motion and Affidavits Annexed ................................... . Notice of Cross Motion and Answering Affidavits ...................... . Affirmations in Opposition to the Cross-Motion ......................... . Replying Affidavits ..................................................................... . Exhibits ..................................................................................... . ., 1 :i 2: 3 I 41 :I Petitioner moves for an order pursuant to CPLR § 7503 (c) permanently staying the I arbitration initiated by respondent, or, in the alternative, a temporary stay 9f arbitration and an ¢I I i order directing a preliminary hearing to determine whether respondents were involved in an [* 2] accident with an uninsured motor vehicle. The petitioner also seeks to add the proposed additional respondents as named above. Finally, in the event a stay is not otheffi'.ise granted, petitioner seeks to temporarily stay the arbitration so that it may obtain di~covery from respondent. To the extent described below, the instant petition is granted.'1 The instant action arises from a four vehicle car accident that occurred on July 11, 2011 ; (the "Accident"). On said date, a vehicle owned and operated by respondent ("vehicle #2") and insured with petitioner was rear-ended by a vehicle owned by proposed additional respondent Matvei Cab Corp., operated by proposed additional respondent Aleksandr Voloshin ("Voloshin") ("vehicle # l ") and insured by proposed additional respondent Fiduciary Insurance Company of America ("Fiduciary"). Specifically, according to the police report "vehicle #1 did rear [end] vehicle #2 causing vehicle #2 to rear end vehicle #3 .... causing vehicle #3 to rear end vehicle I #4." However, in his deposition Mr. Voloshin stated that he was initially hit by a gray van that immediately fled the scene. On or about November 13, 2014, respondent filed a demand for uninsured motorist benefits from petitioner for the Accident pursuant to ar~itration th~ seeking policy issued by petitioner. Specifically, in the demand for arbitration, respondent listed that the Accident was a "Hit-and-Run." Petitioner now brings the instant petition to permanently stay the arbitration on the ground that the alleged offending vehicle at the time of the Accident was insured. In the alternative, petitioner seeks a temporary stay pending a framed issue hearing on the issue of insurance coverage. Respondent has opposed the petition on the ground that if Volosin's I testimony is true, this is hit and run case entitling him to uninsured motorist benefits. Additionally, proposed additional respondents Mar-Can Transportation, Sparta Insurance 2 [* 3] company, and Edith Morgan have opposed the portion of the petition seeking to ~dd them as l additional proposed respondents on the ground that there are no issues as ' j° cov~rage in regards to these parties or whether the car owned by Mar-Can Transportation and ~perated by Edith .I Morgan at the time of the Accident was the vehicle at fault. An insurance carrier seeking to stay the arbitration of an uninsured motorist claim has the burden of demonstrating that the offending vehicle was actually insured a~ the accident at issue. Matter ofAllstate Ins. Co. v. Holmes, 173 A.D.2d 260 (1st ti~e of the Dept 1991 ). ' ' J . Information contained in a police report can be used as prima facie proof t,hat the vehicle is insured. National Grange Mutual Ins. Co. v. Diaz, 111 A.D.2d 700 (I st D~pt 1985). In order to :1 ., ' I be entitled to a hearing, the petitioner seeking to stay the arbitration has the "burden of I I ·I establishing the existence of evidentiary facts, sufficient to conclude that there is a genuine I ' preliminary issue which requires a trial and justifies a stay." National Grange Mutual Ins. Co., i ,i " 111 A.D.2d at 700. If issues of fact exist, the court must hold a hearing before it 'can decide i . whether the arbitration should proceed or be stayed. Country-Wide Ins. C~. v. Leff, 78 A.D.2d I 830 (I st Dept 1980). Where no issue of fact exists as to whether the offending . I ve~icle was I· uninsured, no hearing is necessary and the stay will be denied. Applicatio~ a/Country-Wile Ins. I i Co. v. Manning, 96 A.D.2d 471 (I st Dept 1983); Application ofAmica Mu~. Ins. Co. v. Reaves, 70 A.D.2d 811 (I st Dept 1979). In the instant case, petitioner's application for a temporary stay of the arb~tration pending I ,J a framed issue hearing is granted as the record before the court contains issues of fact as to ' · ¢ whether the offending vehicle in the Accident was uninsured. While the p:olice report annexed to ! petitioner's application demonstrates that vehicle #1, insured by Fiduciary; was the vehicle I ·I 3 11 [* 4] responsible for initiating the chain reaction, such fact is put into dispute by Voloshin's deposition testimony. According to Volosin's deposition testimony, he was initially struck by a van that fled the scene of the Accident. Thus, an issue of fact exists as to whether the Accident was caused by an uninsured vehicle and a framed issue hearing is necessary to 1make a final determination on the issue of applicable insurance coverage in this matter. However, the portion of petitioner's application to add proposed additional respondents Mar-Can Transportation, Sparta Insurance company, Edith Morgan, JulesLeventhal, Janet Leventhal, and GEICO General Insurance Company is denied as said parties are not necessary to make a determination of the applicable insurance coverage at issue herein; Finally, the court notes that in the event this court determines that this is a valid uninsured motorist claim, the petitioner is entitled to have the respondent submit to a physical examination and an examination under oath at that time. Accordingly, it is hereby ORDERED that the arbitration herein be temporarily stayed pendi~g the outcome of a framed issue hearing; and it is further ORDERED that petitioner is hereby granted leave to add the prop~sed additional respondents Matvei Cab Corp., Aleksandr Voloshin and Fiduciary Insurance Company of America to this action; and it is further ORDERED that this matter be set down for a framed issue hearing before this court at 60 Centre Street, Rm 432 on June 3, 2014 at 11:00 a.m. to determine the issue of applicable insurance coverage in this matter. This constitutes the decision and order of the court. Enter:-----"-~_K ____ Dated: 4

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