Opinion
2012-11-8
In re AMERICAN TRANSIT INSURANCE COMPANY, Petitioner–Respondent, v. Mohammad S. HOSSAIN, Respondent, State Farm Automobile Ins. Co., Proposed Additional Respondent–Appellant, Stokely Braithwaite, Proposed Additional Respondent.
Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for American Transit Insurance Company, respondent.
Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for American Transit Insurance Company, respondent.
TOM, J.P., SWEENY, ACOSTA, DeGRASSE, RICHTER, JJ.
Order, Supreme Court, New York County (Marilyn T. Sugarman, Special Referee), entered on or about August 17, 2011, which found that proposed additional respondent State Farm is obligated to insure proposed additional respondent Stokely Braithwaite in connection with the claims made against Braithwaite by respondent, Mohammad S. Hossain, unanimously modified, on the law, to grant the petition to stay the uninsured motorist arbitration, and otherwise affirmed, without costs.
The default judgment in State Farm's favor issued in Nassau County Supreme Court did not have collateral estoppel effect precluding the determination by the Special Referee ( see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 456–457, 492 N.Y.S.2d 584, 482 N.E.2d 63 [1985];Stumpf AG v. Dynegy Inc., 32 A.D.3d 232, 233, 820 N.Y.S.2d 24 [1st Dept.2006] ).
The evidence at the framed-issue hearing was insufficient to establish lack of cooperation ( see Matter of Empire Mut. Ins. Co. [Stroud–Boston Old Colony Ins. Co.], 36 N.Y.2d 719, 721, 367 N.Y.S.2d 972, 328 N.E.2d 485 [1975];Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168–170, 278 N.Y.S.2d 793, 225 N.E.2d 503 [1967] ). Although State Farm sent letters and investigators to three different addresses for Braithwaite, the record does not establish that Braithwaite received the letters or had actual notice of State Farm's attempts to contact him. Further, State Farm never attempted to contact Braithwaite at various other addresses in its file or at a possible work location ( see Matter of Liberty Mut. Ins. Co. v. Roland–Staine, 21 A.D.3d 771, 773, 802 N.Y.S.2d 6 [1st Dept.2005];Matter of New York Cent. Mut. Fire Ins. Co. [Salomon], 11 A.D.3d 315, 316–317, 782 N.Y.S.2d 730 [1st Dept.2004] ).
We modify only to include a provision granting the petition to stay arbitration.