| Matter of Nationwide Mut. Fire Ins. Co. v Thomas |
| 2008 NY Slip Op 00695 [47 AD3d 934] |
| January 29, 2008 |
| Appellate Division, Second Department |
| In the Matter of Nationwide Mutual Fire Insurance Company,Appellant, v Rahman Thomas, Respondent. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), forrespondent.
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of anuninsured motorist claim, the petitioner, Nationwide Mutual Fire Insurance Company, appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman,J.), dated September 7, 2006, as denied that branch of its petition which was for a permanent stayof arbitration.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whetherthere was physical contact between the respondent's vehicle and an alleged "hit-and-run" vehicle.
The respondent Rahman Thomas allegedly was injured while driving a vehicle insured by thepetitioner Nationwide Mutual Fire Insurance Company (hereinafter Nationwide) when he lostcontrol of the vehicle and struck several parked vehicles. Thomas made a demand on Nationwidefor uninsured motorist benefits arising from the accident. Nationwide commenced thisproceeding, inter alia, for a permanent stay of arbitration of that claim. Nationwide contended,among other things, that the accident did not involve an uninsured vehicle. In opposition to thepetition, Thomas averred for the first time that his vehicle was struck by a "hit-and-run" vehiclethat entered from a side street after running a red light. In reply, Nationwide argued thatThomas's allegations concerning a "hit-and-run" vehicle were inconsistent with the police reportof the accident and his prior testimony at an examination under oath, neither of which mentionedany physical contact [*2]between the insured vehicle and anyvehicle other than the parked vehicles, all of which were insured. The Supreme Court, finding theissue of physical contact with the alleged "hit and run" vehicle impermissibly raised for the firsttime in Nationwide's reply papers, denied that branch of the petition which was for a stay ofarbitration. We disagree.
In relevant part, the Nationwide policy requires physical contact between the insured vehicleand a "hit-and-run" vehicle to maintain a claim for uninsured motorist benefits. Such physicalcontact is a condition precedent to arbitration of a claim for uninsured motorist benefits (see Matter of Merchants Mut. Ins. Group vIdore, 10 AD3d 612 [2004]). Here, Nationwide did not impermissibly attempt to raise anew factual issue as to such physical contact in its reply papers (see Matter of Harleysville Ins. Co. vRosario, 17 AD3d 677 [2005]). Rather, Nationwide merely was responding toallegations, made for the first time by Thomas in his opposition to the petition, that a"hit-and-run" vehicle had been involved in the accident (id.). Consequently, there shouldhave been a framed issue hearing on the issue of whether there was physical contact between theinsured vehicle and the alleged "hit-and-run" vehicle (see Matter of Allstate Ins. Co. v Hayes, 17 AD3d 669 [2005];Matter of Merchants Mut. Ins. Group v Idore, 10 AD3d at 612; Matter of Utica Mut. Ins. Co. vLeconte, 3 AD3d 534 [2004]; Matter of New York Cent. Mut. Fire Ins. Co. vParedes, 289 AD2d 495 [2001]).
Finally, Nationwide argues that the Supreme Court erred in failing to address the issue ofwhether Thomas overstated the limits of the uninsured motorist benefits of the subject policy.However, this does not present a threshold issue as to arbitrability (see Matter of County ofRockland [Primiano Constr. Co.], 51 NY2d 1 [1980]). Thus, the Supreme Court did not errin failing to address the issue. Rivera, J.P., Spolzino, Carni and McCarthy, JJ., concur.