Matter of Government Empls. Ins. Co. v Lall

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Matter of Government Empls. Ins. Co. v Lall 2022 NY Slip Op 32861(U) August 15, 2022 Supreme Court, Kings County Docket Number: Index No. 507906/2021 Judge: Peter P. Sweeney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 507906/2021 FILED: KINGS COUNTY CLERK 08/22/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/23/2022 ' UPREME OURT OF THE STATE OF COUNTY OF KINGS: PART 73 W YORK ------------------------------------------------------------------------X Index o.: 507906/2021 Motion Date: 5-23-22 Mot. Seq. No.: l In the Matter of the Application of GOVERNMENT EMPLOYEES INSURANCE COMPA Y to Stay Arbitration, Petitioner, DECISION/ORDER -againstALINI LALL and SEELALL LALL Respondents. ,..._, r--..:, ,..._, - C: ' --- = ADALB ERTO ONOFRE, RAFAEL REY E PLYMOUTH ROCK ASSURANCE and PALISADES INSURANCE COMPANY, .) Ci, N 7 ~ ,rri_ ~ :t> 0 --: N Proposed Additional Respondent(s) -. r, ------------------------------------------------------------------------X i r- --- ' Upon the following e-filed documents, Ii ted by YSCEF as item numbers 1-17 the petition is decided as follows: Petitioner GOVERNME T EMPLOYEE IN URA CE COMPANY moves for an Order pursuant to CPLR 7503(c) granting a permanent stay of arbitration, or in the alternative a temporary stay of arbitration pending a hearing on the issues of (I) whether the claimant alini Lall was a passenger in the vehicle being operated by Seelall Lall; and (2) whether the offending vehicle was in fact, "uninsured"; and 3) joining ADALBERTO O OFRE, RAFA EL REYES PLYMO UTH ROCK ASSURA CE and PAUSADES IN URANCE COMPA Y to this proceeding· 4) directing the respondents to produce a copy of all relevant medical records and authorizations and to submit to examination under oath and physical examinations, if after a hearing, it is determined that respondents are entitled to proceed to arbitration · 5) for such other and further relief as to this Court deems just and proper. The verified petition states: "The Demand for Arbitration alleges that the respondents sustained injuries in an accident on October 8 2020 allegedly involving an uninsured motorist. ADALBERTO ONOFRE was the owner of the offending vehicle which bore Page 1 of 4 [* 1] 1 of 4 Y plate number INDEX NO. 507906/2021 FILED: KINGS COUNTY CLERK 08/22/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/23/2022 KED2943. Said vehicle was being operated by RAFAEL REYES .' A certified copy of the police accident report was annexed to the petition as Exhibit "B". (See YSC EF Doc No. 4.) Proposed additional Respondents ADALBERTO O OFRE PL YMOUTl l ROCK ASSURA CE and PALISADES INS URA CE COMPA Y (hereinafter "O OFRE ' "PLYMOUTH' and " PALISADES") oppose the petition on the basis that Plymouth and Palisades did not afford coverage for the vehicle operated by RAFAEL REYES (here inafter " REYES ') on the date of the subject accident. Respondents ALINI LALL and SEE LALL LALL oppose the branch of the motion seeking a permanent stay and consent to a temporary stay pending a framed-issue hearing. A party seeking a stay of arbitration of a claim for UM benefits has the initial burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay (Government Employees Ins. Co. v. Hua Huang, 139 A.D.3d 950, 951 [2ndOept 2016) citing Matter o.f Hertz Corp. v. Holmes l06A.O.3dl001, 1003, 966 N.Y.S .2d 157 [2nd Dept 2013)). Where a triable issue of fact is raised the Supreme ourt not the arbi trator must determine the preliminary issue in a framed-issue hearing. The appropriate procedUJe under such circumstances is to temporarily stay arbitration pending a determination of the issue (Matter of Hertz Corp. v. Holmes, 106 A.O. 3d 1001 , 1003 [2nd Dept 2013]). The ce1tified police report indicates that the vehicle driven by Reyes was a 2008 1ssan Sedan with NYS license plate no. KED2943. Annexed as Exhibit " C' to the Petition (NYSCEf Doc No. 5) is a copy of the plate search conducted of the Department of Motor Vehicle records, which identifies the VIN number of the vehicle associated with NYS license plate no . KED2943 as WBADT43442GZ97767, and the make of the vehicle as an 02 BMW." In opposition, although Palisades contends that Palisades insured a 2002 BMW with the above VIN number covering the date of accident, and not a 2008 Nissan which is identified as the vehicle being driven by R yes on the date of the accident in the Police Accident Report Palisades did not demonstrate this by admissible proof. Although Palisades submitted a copy of the Declarations Page for the Palisades Policy issued to Onofore along with a copy of the rnsurance Card effect on the date of accident (NYSCE F Doc No. 16), these documents were not Page 2 of 4 [* 2] 2 of 4 INDEX NO. 507906/2021 FILED: KINGS COUNTY CLERK 08/22/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/23/2022 L ' submitted in admissible form. o explanation was given as to why the Yr number for the 2002 BMW was the same as the YIN number on the police report. For this rea on , and since the plate check indicates that Reyes was operating a vehicle with a license plate assigned to d fendant 0 OFRE and that PALISADES TN URA CE CO. was the insurer of a vehicle with th is plate number, a framed issue hearing on this issue or whether Palisades was the insurer of the vehicle operated by Reyes on the day of the accident requires a framed issue hearing. Accordingly, it is hereby ORDERED that the branch of the petition to add ADALBE RTO ONOF RE PLYMOUTH ROCK ASSURA CE and PALISADES INSURA C E COMPA Y as additional Re pondents is GRANTED ; it is further ORDERED that the branch of the petition to add RAFAEL REYE as additional Respondent is GRA T D without opposition· it is further ORDERED that the branch of the petition seeking a tay of arbitration shall be held in abeyance pending a framed issue hearing on the issues of l) whether the offending vehicle was uninsured at the time of the accident; 2) whether claimant Nalini Lall was a passenger in the vehic le being operated by Seelall Lal I. These iss ues hall be referred to a referee to hear and report; it is further ORDERED that if it is determined that the respondents are entitled to proceed to arbitration the respondents shall provide the petitioner with all relevant medical records and authorizations and submit to both an examination under oath and physical examination prior to "'-) proceeding to arbitration, if he/she/they has/have not already done so. c::::t ~ :b- e: _, G"-:) This constitutes the decision and order of this court. N N Dated: August 15 2022 r , PETER P. SWEENEY, J.S.C. Page 3 of 4 [* 3] 3 of 4 INDEX NO. 507906/2021 FILED: KINGS COUNTY CLERK 08/22/2022 ... NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/23/2022 ate: This signature was generated electronicall pursuant to Adm ini trative Order 86/20 dated Apri l 20, 2020 Page 4 of 4 [* 4] 4 of 4

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