| Matter of Mercury Ins. Group v Ocana |
| 2007 NY Slip Op 09592 [46 AD3d 561] |
| December 4, 2007 |
| Appellate Division, Second Department |
| In the Matter of Mercury Insurance Group,Appellant, v Noemi Ocana, Respondent, et al., Proposed AdditionalRespondents. |
—[*1] Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (Mark P. Cambareri ofcounsel), for respondent.
In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of aclaim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so muchof an order of the Supreme Court, Orange County (Horowitz, J.), dated February 5, 2007, asdenied that branch of the petition which was to permanently stay the arbitration.
Ordered that the order is reversed insofar as appealed from, on the law, and the matter isremitted to the Supreme Court, Orange County, for an evidentiary hearing to determine whetherProgressive Insurance Company validly disclaimed coverage of the offending vehicle for thesubject accident, and thereafter, for a new determination on that branch of the petition which wasto permanently stay the arbitration; and it is further,
Ordered that the temporary stay of arbitration contained in the decision and order on motionof this Court dated June 20, 2007 is continued pending the evidentiary hearing and the newdetermination on the petition; and it is further,
Ordered that one bill of costs is awarded to the appellant.
Contrary to the determination of the Supreme Court, the petitioner, Mercury Insurance Group(hereinafter Mercury), made a prima facie showing that the offending hit-and-run vehicle was[*2]insured by Progressive Insurance Company (hereinafterProgressive) on the date of the accident through the submission, inter alia, of the police accidentreport containing the vehicle's insurance code (see Matter of Nationwide Ins. Enter. v Harris, 44 AD3d 947[2007]; Matter of Utica Mut. Ins. Co. vColon, 25 AD3d 617, 618 [2006]; Matter of New York Cent. Mut. Fire Ins. Co. v Licata, 24 AD3d450, 451 [2005]; Matter of AIU Ins.Co. v Nunez, 17 AD3d 668 [2005]; Matter of Eagle Ins. Co. v Beauvil, 297AD2d 736, 737 [2002]; Matter of Government Empls. Ins. Co. v McFarland, 286 AD2d500 [2001]; Matter of Liberty Mut. Ins. Co. v Bohl, 262 AD2d 645, 646 [1999];Matter of State Farm Ins. Co. v Vanblarcom, 226 AD2d 732 [1996]). In this regard, thechallenge to the admissibility of the report by Noemi Ocana, who was injured when the offendingvehicle struck her vehicle, and sought uninsured motorist benefits from Mercury, is improperlyraised for the first time on appeal, and we decline to reach the issue, since the petitioner did nothave an opportunity to present opposing evidence on this question before the Supreme Court (see Sarva v Chakravorty, 34 AD3d438, 439 [2006]; Weber v Jacobs, 289 AD2d 226 [2001]; Fresh Pond Rd. Assoc.v Estate of Schacht, 120 AD2d 561 [1986]; Orellano v Samples Tire Equip. & SupplyCorp., 110 AD2d 757, 758 [1985]). The burden thus shifted to Ocana to establish either alack of insurance coverage or a timely and valid disclaimer of coverage by Progressive (see Matter of Eagle Ins. Co. vRodriguez, 15 AD3d 399, 400 [2005]; Matter of Liberty Mut. Ins. Co. v McDonald, 6 AD3d 614, 615[2004]; Matter of American Cas. Ins. Co. v Walcott, 300 AD2d 478 [2002]; Brogan vNew Hampshire Ins. Co., 250 AD2d 562 [1998]; Country Wide Ins. Co. v Allstate Ins.Co., 223 AD2d 664 [1996]; Matter of Centennial Ins. Co. v Capehart, 220 AD2d 499[1995]). The disclaimer letter issued by Progressive, while not establishing as a matter of law thatProgressive validly disclaimed coverage due to a lack of cooperation on the part of its insured(see generally Matter of Empire Mut. Ins. Co. [Stroud—Boston Old Colony Ins.Co.], 36 NY2d 719 [1975]; Matterof Liberty Mut. Ins. Co. v Roland-Staine, 21 AD3d 771 [2005]; Matter of Eveready Ins. Co. v Mack, 15AD3d 400 [2005]), sufficed to raise factual questions as to the validity of the disclaimerwhich warrant a hearing (see Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496[2003]; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579 [1998]; seegenerally Matter of Nationwide Ins. Co. v Sillman, 266 AD2d 551 [1999]; Matter ofEagle Ins. Co. v Sadiq, 237 AD2d 605 [1997]). Accordingly, we remit the matter to theSupreme Court, Orange County, for a hearing on that issue, and, thereafter, for a newdetermination on that branch of the petition which was for a permanent stay of arbitration.Santucci, J.P., Krausman, Lifson and McCarthy, JJ., concur.