| State Farm Mut. Auto. Ins. Co. v Taveras |
| 2010 NY Slip Op 02671 [71 AD3d 606] |
| March 30, 2010 |
| Appellate Division, First Department |
| State Farm Mutual Automobile Insurance Company,Respondent, v Alison Taveras, Respondent, and Richard A. Cruz et al.,Appellants. |
—[*1] Richard T. Lau & Associates, Jericho (Joseph G. Gallo of counsel), for State Farm MutualAutomobile Insurance Company, respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about November9, 2009, which granted petitioner insurer's application to permanently stay an uninsured motoristarbitration, unanimously affirmed, without costs. Appeal from short-form order, entered on orabout September 14, 2009, unanimously dismissed, without costs, as subsumed in the appealfrom the above order.
Additional respondents, the owner and insurer of the offending vehicle, assert that thevehicle was uninsured at the time of the accident because it was being driven by an unknownthief. No basis exists to disturb the court's finding, after a framed-issue hearing, that the evidenceof such theft and nonpermissive use was insufficient to overcome the presumption of permissiveuse (see Murdza v Zimmerman, 99 NY2d 375, 380 [2003] ["substantial" evidenceneeded to overcome presumption of permissive use]; Thoreson v Penthouse Intl., 80NY2d 490, 495 [1992] [fact-finding court's decision should not be disturbed on appeal unless itis "obvious" that its conclusions could not be reached under any fair interpretation of theevidence, especially where findings of fact largely rest on witness credibility]). In so finding, thehearing court properly took into account the owner's failure to adequately explain his substantialdelay in calling the police to report the alleged theft, which call immediately followed an allegedassault on the owner and his friends by a mob of angry people (see Minaya v Horner,279 AD2d 333 [2001]). There being no dispute that the burden of proof was initially onadditional respondents to prove nonpermissive use, it does not avail them that the hearing courtalso rejected as incredible the testimony of one of the victims, called by petitioner, that he hadseen the owner sitting in the passenger side of the car in the seconds before the car jumped thecurb and knocked him down. Concur—Mazzarelli, J.P., Sweeny, Nardelli, Acosta andManzanet-Daniels, JJ.