| Matter of Allstate Ins. Co. v Aizin |
| 2013 NY Slip Op 00079 [102 AD3d 679] |
| January 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Allstate Insurance Company,Respondent, v Alexander Aizin, Appellant. |
—[*1] Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), forrespondent.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of aclaim for uninsured motorist benefits or, in the alternative, inter alia, to direct a hearingon the issue of insurance coverage and for a temporary stay of arbitration pending thehearing, Alexander Aizin appeals from an order of the Supreme Court, RichmondCounty (Minardo, J.), dated August 18, 2011, which granted the petition andpermanently stayed arbitration.
Ordered that the order is modified, on the law, by deleting the provision thereofpermanently staying arbitration and substituting therefor provisions directing a hearingon the issue of insurance coverage and temporarily staying arbitration pending thecompletion of the hearing; as so modified, the order is affirmed, with costs to theappellant, and the matter is remitted to the Supreme Court, Richmond County, for ahearing on the issue of insurance coverage, including the issue of whether there was anyphysical contact between the appellant's vehicle and an alleged "hit-and-run" vehicle, andnew determination thereafter on the request for a permanent stay of arbitration.
On December 29, 2010, Alexander Aizin, while driving his own vehicle, wasinvolved in a motor vehicle accident with two other vehicles, driven by Steven A.Giardina and Anthony Calabro, respectively. On the date of the accident, Aizin's vehiclewas insured by the petitioner, Allstate Insurance Company (hereinafter Allstate).According to the police accident report, Aizin's vehicle struck the rear end of both of themotor vehicles driven by Giardina and Calabro, while all three were traveling eastboundon the Gowanus Expressway in Brooklyn. Aizin alleged that he lost control of his motorvehicle after a hit-and-run vehicle struck his vehicle in the rear. However, the respondingofficer noted on the police accident report that Aizin stated that his accelerator pedal gotstuck, and the report made no mention that a hit-and-run vehicle was involved.
In April 2011, Aizin demanded arbitration of his claim for supplementaryuninsured/underinsured motorist (hereinafter SUM) benefits from Allstate. ThereafterAllstate commenced this proceeding, seeking, inter alia, a permanent stay of thearbitration, or, in the alternative, a temporary stay of arbitration pending a framed-issuehearing on the issue of insurance [*2]coverage of thealleged uninsured "hit-and-run" vehicle, and leave to add Giardina, Giardina's insurer,State Farm Insurance Company, Calabro, and Calabro's insurer, Government EmployeesInsurance Company, as additional respondents. Allstate argued that a permanent stay ofthe SUM arbitration was proper because, based on the police accident report, a copy ofwhich was annexed as an exhibit to the petition, Aizin was not involved in a motorvehicle accident involving an uninsured motorist, since both the Giardina vehicle and theCalabro vehicle had insurance coverage. In opposition, Aizin contended that, in additionto the fact that there was a fourth vehicle involved in the accident which struck hisvehicle and left the scene, he never spoke with the police officer at the scene. Heincluded, as an exhibit, the transcript of his examination under oath conducted byAllstate. During Aizin's examination under oath, he testified that, as a result of theaccident, his motor vehicle was caused to flip over, so that he was suspended upsidedown and had to be cut out of the vehicle. He also testified that he never told any policeofficer at the scene of the accident that his accelerator had gotten stuck, and onlyprovided contact information for his wife to an officer who spoke to him at the hospital.
The Supreme Court granted that branch of Allstate's petition which was for apermanent stay of the SUM arbitration, and Aizin appeals.
The issue of whether there was physical contact with the insured's vehicle and analleged hit-and-run vehicle is to be determined by the Supreme Court, and not anarbitrator (see Matter of Bisignano v Interboro Mut. Indem. Ins. Co., 235 AD2d419, 419 [1997]; see also Matterof Hanover Ins. Co. v Lewis, 57 AD3d 221, 222 [2008]). The absence from thepolice report of any mention of contact with an alleged "hit and run" vehicle did notconclusively establish that contact between Aizin's vehicle and a "hit-and-run" vehicledid not occur but, at most, raised a factual issue as to whether there actually was physicalcontact between Aizin's motor vehicle and a "hit and run" vehicle (see Matter ofMidwest Mut. Ins. Co. [Roberson], 64 AD2d 985, 985 [1978]; Matter of Eveready Ins. Co. vScott, 1 AD3d 436, 437 [2003]). Where a triable issue of fact regarding theexistence of physical contact with a hit-and-run vehicle has been properly raised,"theappropriate procedure is to stay arbitration pending a determination on that issue" (Matter of Utica Mut. Ins. Co. vLeconte, 3 AD3d 534, 535 [2004]; see Matter of Nationwide Mut. Fire Ins. Co. v Thomas, 47AD3d 934, 935 [2008]).
Here, since Aizin testified that he did not speak to the police officer at the scene ofthe accident, and the police accident report simply did not mention the allegedhit-and-run vehicle, the Supreme Court, before making a determination on the request fora permanent stay, should have conducted a framed-issue hearing to determine whether ahit-and-run vehicle was involved in the accident (see Matter of Government Empls.Ins. Co. v Estate of Sosnov, 275 AD2d 322 [2000]; cf. Matter of New YorkCent. Mut. Fire Ins. Co. v Paredes, 289 AD2d 495, 496 [2001]; Matter ofMaryland Cas. Co. v Piasecki, 235 AD2d 423, 424 [1997]; Matter of Allstate Ins.Co. v Weiss, 178 AD2d 529, 529 [1991]; Matter of Prudential Prop. & Cas. Ins.Co. [Schwartz], 104 AD2d 557, 558-559 [1984]). Dillon, J.P., Leventhal, Austin andMiller, JJ., concur.