| Matter of Hertz Corp. v Holmes |
| 2013 NY Slip Op 03674 [106 AD3d 1001] |
| May 22, 2013 |
| Appellate Division, Second Department |
| In the Matter of Hertz Corporation,Appellant, v Lashawn Holmes, Respondent. Travelers Insurance Company et al.,Proposed Respondents. |
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In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stayarbitration of a claim for supplementary uninsured motorist benefits, the petitionerappeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated June28, 2012, which denied that branch of the petition which was to temporarily stayarbitration of the supplementary uninsured motorist claim pending a framed-issuehearing, in effect, denied that branch of the petition which was for joinder of theproposed additional respondents, Travelers Insurance Company and Precious Morrison,and, in effect, denied the branch of the petition which was for a permanent stay ofarbitration and dismissed the proceeding.
Ordered that the order is reversed, on the law, with costs, the petition is reinstated,those branches of the petition which were to temporarily stay arbitration of thesupplementary uninsured motorist claim pending a framed-issue hearing and for thejoinder of the proposed additional respondents, Travelers Insurance Company andPrecious Morrison, are granted, and the matter is remitted to the Supreme Court, KingsCounty, for a framed-issue hearing to determine whether the vehicle owned by PreciousMorrison was involved in the subject accident, and a new determination thereafter onthat branch of the petition which was for a permanent stay of arbitration.
On September 8, 2011, the respondent, Lashawn Holmes, was operating a rentalvehicle which was owned and self-insured by the petitioner, the Hertz Corporation(hereinafter Hertz), when it was involved in a collision with another vehicle near theintersection of East 108th Street and Flatlands Avenue in Brooklyn. The other vehicleallegedly left the scene of the accident. Holmes described the other vehicle as a sportutility vehicle. A copy of the police accident report contained a license plate number forthe other vehicle, but only the last four digits were legible. After conducting aninvestigation, Hertz concluded that the other vehicle was owned and insured by PreciousMorrison and Travelers Insurance Company (hereinafter Travelers), respectively.Morrison denied any involvement in the accident, and on that basis, Travelers deniedHolmes's property damage claim. Thereafter, Holmes requested supplementary uninsuredmotorist arbitration with Hertz, and Hertz commenced this proceeding to permanentlystay arbitration of the claim, or, in the alternative, to temporarily stay arbitration pendinga framed-issue hearing to determine whether the vehicle owned by Morrison wasinvolved in the accident. The Supreme Court denied that branch of Hertz's petition whichwas to temporarily stay arbitration pending a framed-issue hearing, in effect, denied thatbranch of the petition which was for joinder of Travelers and Morrison as additionalrespondents, and, in effect, denied that branch of the petition which was for a permanent[*2]stay of arbitration and dismissed the proceeding.
"The party seeking a stay of arbitration has the burden of showing the existence ofsufficient evidentiary facts to establish a preliminary issue which would justify the stay"(Matter of AutoOne Ins. Co. vUmanzor, 74 AD3d 1335, 1336 [2010]; see Matter of Metropolitan Prop. & Cas. Ins. Co. v Singh, 98AD3d 580, 581 [2012]). Thereafter, the burden is on the party opposing the stay torebut the prima facie showing (see Matter of Metropolitan Prop. & Cas. Ins. Co. vSingh, 98 AD3d at 581; Matter of American Intl. Ins. Co. v Giovanielli, 72 AD3d948, 949 [2010]). Where a triable issue of fact is raised, the Supreme Court, not thearbitrator, must determine it in a framed-issue hearing, and the appropriate procedureunder such circumstances is to temporarily stay arbitration pending a determination of theissue (see Matter of Allstate Ins.Co. v Aizin, 102 AD3d 679, 681 [2013]).
Here, the documents submitted by Hertz in support of the petition demonstrated theexistence of sufficient evidentiary facts to establish a preliminary issue justifying atemporary stay. In opposition to the petition, Morrison denied any involvement in theaccident. As the evidence submitted by the parties raised a triable issue of fact as towhether Morrison's vehicle was involved in the subject accident, the Supreme Courtshould have conducted a framed-issue hearing on that issue before rendering adetermination on the petition (see Matter of Allstate Ins. Co. v Aizin, 102 AD3dat 681-682; Matter of VictoriaSelect Ins. Co. v Munar, 80 AD3d 707, 707-708 [2011]; Matter of AIU Ins.Co. v Cabreja, 301 AD2d 448, 449 [2003]), and should have joined Travelers andMorrison as additional respondents (see Victoria Select Ins. Co. v Munar, 80AD3d at 707-708; Matter of Aetna Cas. & Sur. Co. v Arhaniotis, 202 AD2d 497,498 [1994]). Accordingly, we must reverse the order appealed from, grant those branchesof the petition which were to temporarily stay arbitration pending a framed-issue hearingand for the joinder of Morrison and Travelers as additional respondents, and remit thematter to the Supreme Court, Kings County, for a framed-issue hearing to determinewhether the vehicle owned by Morrison was involved in the subject accident, and for anew determination thereafter on that branch of the petition which was for a permanentstay of arbitration. Dillon, J.P., Chambers, Austin and Roman, JJ., concur.