Opinion
2017-12722 Index No. 57137/17
04-10-2019
In the Matter of GEICO INSURANCE COMPANY, Respondent, v. Claudio SILVERIO, Appellant.
Yadgarov & Associates, PLLC, New York, N.Y. (Ronald S. Ramo of counsel), for appellant.
Yadgarov & Associates, PLLC, New York, N.Y. (Ronald S. Ramo of counsel), for appellant.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDERIn a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary uninsured motorist benefits, Claudio Silverio appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated September 25, 2017. The order, insofar as appealed from, granted that branch of the petition which was for a permanent stay of arbitration.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
On November 17, 2014, Claudio Silverio (hereinafter the appellant) allegedly was injured in a motor vehicle accident when his vehicle was struck in the rear by an unidentified vehicle, which caused his vehicle to strike a vehicle in front of him. The unidentified vehicle left the scene. On the date of the accident, the appellant's vehicle was insured by Geico Insurance Company (hereinafter Geico). On April 17, 2017, the appellant demanded arbitration of his claim for supplementary uninsured motorist benefits from Geico.
On May 8, 2017, Geico commenced this proceeding pursuant to CPLR article 75, seeking, inter alia, a permanent stay of arbitration. Geico alleged, among other things, that the appellant failed to satisfy a condition precedent to arbitration as required by the insurance policy, namely, proper notification of the accident within 24 hours or as soon as reasonably possible. In opposition, the appellant submitted his affidavit, in which he stated that when he "called [Geico]" from the scene to report the accident, the "customer service person" represented that a police report was not necessary. It was only after the appellant retained an attorney in December 2014 that he filed a police accident report with the Department of Motor Vehicles. The Supreme Court granted that branch of the petition which was for a permanent stay of arbitration.
It is undisputed that the appellant failed to report the hit-and-run accident to the police or the Commissioner of Motor Vehicles within 24 hours or as soon as was reasonably possible as required by the terms and provisions of his insurance policy (see Matter of Eagle Ins. Co. v. Brown, 309 A.D.2d 749, 750, 765 N.Y.S.2d 273 ; Matter of Government Empls. Ins. Co. v. Snell, 286 A.D.2d 682, 729 N.Y.S.2d 779 ; Matter of State Farm Mut. Ins. Co. v. Genao, 210 A.D.2d 340, 620 N.Y.S.2d 270 ; Schauer v. Motor Veh. Acc. Indem. Corp., 90 A.D.2d 790, 455 N.Y.S.2d 396 ).
Contrary to the appellant's contention, Geico should not be equitably estopped from denying coverage. In order to establish a claim based upon equitable estoppel, the appellant was required to prove that his reliance upon the words or actions of Geico was "justifiable" and that in consequence of such reliance, he prejudicially changed his position ( Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265 ; see Town of Hempstead v. Incorporated Vil. of Freeport, 15 A.D.3d 567, 570, 790 N.Y.S.2d 518 ). The appellant failed to demonstrate that he justifiably relied on any actions or statements made by Geico in light of the express language in the insurance policy that the terms and provisions of the policy could not be waived or changed except by an endorsement (see Ferber v. Farm Family Cas. Ins. Co., 272 A.D.2d 747, 749–750, 707 N.Y.S.2d 545 ; Bank of N.Y. v. Spring Glen Assoc., 222 A.D.2d 992, 994, 635 N.Y.S.2d 781 ; Chadirjian v. Kanian, 123 A.D.2d 596, 597, 506 N.Y.S.2d 880 ; Manufacturers Hanover Trust Co. v. Trans Natl. Communications, 36 A.D.2d 709, 710, 319 N.Y.S.2d 510 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of the petition which was for a permanent stay of arbitration.
RIVERA, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.