| Matter of Victoria Select Ins. Co. v Munar |
| 2011 NY Slip Op 00387 [80 AD3d 707] |
| January 18, 2011 |
| Appellate Division, Second Department |
| In the Matter of Victoria Select Insurance Company,Respondent, v Yamira Munar, Respondent. GEICO Insurance Company et al., ProposedAdditional Respondents-Appellants. |
—[*1] Epstein & Rayhill, Elmsford, N.Y. (David M. Heller of counsel), forpetitioner-respondent.
In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of anuninsured motorist claim, the proposed additional respondents, GEICO Insurance Company, PatriciaAllen, and Timothy Allen, appeal from an order and judgment (one paper) of the Supreme Court,Westchester County (Smith, J.), dated March 25, 2010, which granted that branch of the petitionwhich was to permanently stay arbitration of the uninsured motorist claim, and determined that GEICOInsurance Company improperly disclaimed coverage for the subject accident.
Ordered that the order and judgment is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Westchester County, for the joinder of the proposed additional respondents,GEICO Insurance Company, Patricia Allen, and Timothy Allen, as necessary parties, for a hearing todetermine whether GEICO Insurance Company properly disclaimed coverage for the subject accident,and for a new determination thereafter of that branch of the petition which was to permanently stayarbitration.
A vehicle owned and operated by Yamira Munar, and insured by Victoria Select InsuranceCompany (hereinafter Victoria), was struck in the rear by a vehicle owned by Timothy Allen, operatedby Patricia Allen, and insured by GEICO Insurance Company (hereinafter GEICO). Munar submitteda bodily injury claim to GEICO, and GEICO denied the claim. Munar then requested uninsuredmotorist arbitration with Victoria, and Victoria commenced this proceeding, inter alia, to permanentlystay arbitration. The Supreme Court determined that GEICO improperly disclaimed coverage for thesubject accident and granted that branch of the petition which was to permanently stay arbitration.
The documents submitted by the parties raised issues of fact as to whether GEICO properlydisclaimed coverage for the subject accident. Therefore, the Supreme Court erred in determining,without the joinder of GEICO, Patricia Allen, and Timothy Allen, and without conducting a hearing, thatGEICO improperly disclaimed coverage for the subject accident (see Matter of New York Cent. Mut. [*2]Ins. Co.v Davalos, 39 AD3d 654, 656 [2007]; Matter of New York Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629, 630[2004]; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496, 497-498 [2003]; Matterof New York Cent. Mut. Fire Ins. Co. [Rozenberg], 281 AD2d 330 [2001]; Matter ofNationwide Ins. Co. v Sillman, 266 AD2d 551 [1999]; Matter of Eagle Ins. Co. v Sadiq,237 AD2d 605 [1997]; Matter of Eagle Ins. Co. v Natilishvili, 248 AD2d 470 [1998]).Accordingly, upon remittal, the Supreme Court must direct the joinder of GEICO, Patricia Allen, andTimothy Allen as necessary parties, conduct a hearing to determine whether GEICO properlydisclaimed coverage for the subject accident, and then determine anew that branch of the petition whichwas to permanently stay arbitration. Prudenti, P.J., Angiolillo, Florio and Sgroi, JJ., concur.