| Matter of Nationwide Ins. Enter. v Harris |
| 2007 NY Slip Op 08075 [44 AD3d 947] |
| October 23, 2007 |
| Appellate Division, Second Department |
| In the Matter of Nationwide Insurance Enterprise,Respondent, v Mavis Harris et al., Appellants, and New York Automobile InsurancePlan, Respondent. |
—[*1] Feder, Kaszovitz, Isaacson, Weber, Skala, Bass & Rhine LLP, New York, N.Y. (Martin J.Hertz of counsel), for respondent New York Automobile Insurance Plan.
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of anuninsured motorist claim, Mavis Harris and Iris Welds appeal, as limited by their brief, from somuch of an order of the Supreme Court, Kings County (Schneier, J.), dated September 27, 2000,as, without a hearing, granted that branch of the petition which was to permanently stayarbitration, and, in effect, denied as academic that branch of the petition which was totemporarily stay arbitration in order to conduct a hearing on the issue of insurance coverage ofthe vehicle owned by the nonparty Tracey L. Washington, and for a permanent stay of arbitrationthereafter.
Ordered that the order is reversed insofar as appealed from, on the law, with costs payable bythe petitioner to the appellants, that branch of the petition which was to permanently stayarbitration, without a hearing, is denied, that branch of the petition which was to temporarily stayarbitration in order to conduct a hearing on the issue of insurance coverage is granted, and thematter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether thevehicle owned by the nonparty Tracey L. Washington was insured on June 17, 1999 and a newdetermination thereafter on that branch of the petition which was for a permanent stay ofarbitration.
This matter involves an automobile accident that occurred on June 17, 1999 between avehicle owned by Mavis Harris, and operated by nonparty Ivanhoe Lattray, and a vehicle ownedand operated by nonparty Tracey L. Washington. Harris and Iris Welds, a passenger in the Harrisvehicle, allegedly were injured in the accident. Harris and Welds subsequently demandedarbitration of their claim for uninsured motorist coverage under the policy issued by thepetitioner covering the vehicle owned by Harris.[*2]
In response to the demand, the petitioner commenced thisproceeding seeking a temporary stay of arbitration pending a hearing as to insurance coverageand a permanent stay of arbitration thereafter or, in the alternative, a judgment immediately andpermanently staying arbitration without a hearing. In support of the petition, the petitionersubmitted, inter alia, a copy of a report of the National Insurance Crime Bureau indicating that,on the date of the accident, Washington's vehicle was insured by an insurer with code number"999." Additionally, the petitioner submitted a copy of the relevant police accident report, whichrecorded "999" as the insurance code for Washington's car. It is undisputed that code number"999" identifies the insurer as the New York Automobile Insurance Plan, commonly known asthe Assigned Risk Plan (hereinafter the Plan). This was sufficient to make out the petitioner'sprima facie case that Washington's vehicle was insured on the day of the accident, and thatuninsured motorists' coverage was thus unavailable (see Matter of Utica Mut. Ins. Co. v Colon, 25 AD3d 617, 618[2006]; Matter of New York Cent. Mut.Fire Ins. Co. v Licata, 24 AD3d 450, 451 [2005]; cf. Matter of Progressive Northwestern Ins. v Gjonaj, 43 AD3d1169 [ 2007]).
The proof offered by the appellants in opposition, however, demonstrated that in 1995, thePlan had assigned the responsibility for providing insurance coverage for the Washington vehicleto New York Central Mutual Insurance Company (hereinafter Central), but that in February 1996Central had submitted documents properly reflecting cancellation of the policy. The appellantsalso submitted proof showing that, at least since that time, no application had been submitted tothe Plan for an insurer to be assigned to Washington. This was sufficient to show the existence ofa factual issue as to whether or not Washington's vehicle was insured at the time of the accident,requiring a framed-issue hearing to resolve the dispute (see Matter of New York Cent. Mut.Fire Ins. Co. [Rozenberg], 281 AD2d 330, 331 [2001]; Matter of Eagle Ins. Co. vSadiq, 237 AD2d 605 [1997]; cf. Matter of Government Empls. Ins. Co. vWilliams-Staley 288 AD2d 471, 472 [2001]).
Accordingly, the Supreme Court should not have permanently stayed the arbitration withouta hearing. Rather, as the appellants argued both to the Supreme Court and to this Court, theSupreme Court should have held the issue of a permanent stay in abeyance, temporarily stayedarbitration, and directed a hearing on the issue of insurance coverage.
We note that no notice of appeal has been filed by the Plan. Accordingly, there is no basis toexamine its contentions as to the propriety of its having been joined as a party to this proceeding(see NYCTL 1998-1 Trust v Prol Props. Corp., 308 AD2d 478, 479 [2003]). Crane, J.P.,Florio, Lifson and Carni, JJ., concur.