| Matter of AutoOne Ins. Co. v Umanzor |
| 2010 NY Slip Op 05762 [74 AD3d 1335] |
| June 29, 2010 |
| Appellate Division, Second Department |
| In the Matter of AutoOne Insurance Company,Respondent, v Julio E. Umanzor, Appellant. Auto Palace, Inc., et al., ProposedAdditional Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Albert Galatan of counsel), forrespondent.
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of aclaim for uninsured motorist benefits, Julio E. Umanzor appeals from an order of the SupremeCourt, Suffolk County (Pastoressa, J.), dated February 27, 2009, which granted that branch of thepetition which was to permanently stay arbitration upon the ground that he is not an insuredunder the subject policy.
Ordered that the order is reversed, on the law, with costs, and that branch of the petitionwhich was to permanently stay arbitration upon the ground that Julio E. Umanzor is not aninsured under the subject policy is denied.
The party seeking a stay of arbitration has the burden of showing the existence of sufficientevidentiary facts to establish a preliminary issue which would justify the stay (see Matter ofAmerican Protection Ins. Co. v DeFalco, 61 AD3d 970, 972 [2009]; Matter of UticaMut. Ins. Co. v Colon, 25 AD3d 617, 618 [2006]; Matter of Liberty Mut. Ins. Co. vMorgan, 11 AD3d 615, 616 [2004]; Matter of Government Empls. Ins. Co. v Estate ofSosnov, 275 AD2d 322 [2000]; Matter of Eagle Ins. Co. v Viera, 236 AD2d 612[1997]; Matter of Nationwide Mut. Ins. Co. v Sparacino, 191 AD2d 635 [1993]). Here,the petition seeking to permanently stay arbitration of the appellant's claim for uninsuredmotorist benefits was unverified, and the petitioner offered no evidentiary proof to support itsassertion that the appellant is not a "resident relative" who is entitled to coverage as an insuredunder the subject policy. Since the petitioner failed to sustain its initial burden of demonstratingthat a factual issue exists as to whether the appellant is a "resident relative," the Supreme Courtshould have denied that branch of the petition which was to permanently stay arbitration uponthe ground that the appellant is not an insured under the subject policy.
We do not consider the issues raised by the appellant with respect to those branches of thepetition which were to permanently stay arbitration on the ground that the second vehicleinvolved in the subject accident was insured, or to temporarily stay arbitration pending a framedissue hearing to determine whether the second vehicle was insured. Since the Supreme Courtfailed to address these branches of the petition, they remain pending and undecided (seeCoakley v Middle County Cent. School Dist., 73 AD3d 832 [2010]; Johnson vGEICO, 72 AD3d 900 [2010]; Matter of Interboro Ins. Co. v Maragh, 51 AD3d1024 [2008]; Katz v Katz, 68 AD2d 536, 542-543 [1979]). Dillon, J.P., Miller, Eng andChambers, JJ., concur.