Opinion
2016–07294 Index No. 703873/15
01-09-2019
In the Matter of ALLMERICA FINANCIAL BENEFIT INS., Appellant, v. Steven KOKOTOS, Respondent.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Anne Marie Garcia, Woodbury and Catherine F. Cavanagh of counsel), for appellant. Marku Beno & Tsamblakos, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn, Arshia Hourizadeh, and Lauren Bryant ], of counsel), for respondent.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Anne Marie Garcia, Woodbury and Catherine F. Cavanagh of counsel), for appellant.
Marku Beno & Tsamblakos, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn, Arshia Hourizadeh, and Lauren Bryant ], of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The petitioner, Allmerica Financial Benefit Ins., commenced this proceeding, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits on the ground that there was no physical contact between the vehicle of its insured, Steven Kokotos, and an alleged hit-and-run vehicle. After a framed-issue hearing to determine whether there was physical contact between Kokotos's vehicle and the alleged hit-and-run vehicle, the Supreme Court denied that branch of the petition which was to permanently stay arbitration and dismissed the proceeding. The petitioner appeals.
Physical contact is a condition precedent to recovery on an uninsured motorist claim based upon a hit-and-run accident (see Insurance Law § 5217 ; Matter of Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 328, 574 N.Y.S.2d 927, 580 N.E.2d 399 ; Motor Veh. Acc. Indem. Corp. v. Eisenberg, 18 N.Y.2d 1, 3, 271 N.Y.S.2d 641, 218 N.E.2d 524 ; Matter of Progressive Northwestern Ins. Co. v. Scott, 123 A.D.3d 932, 932–933, 999 N.Y.S.2d 442 ; Matter of Progressive Specialty Ins. Co. v. Lubeck, 111 A.D.3d 947, 947, 976 N.Y.S.2d 153 ; Matter of Nova Cas. Co. v. Musco, 48 A.D.3d 572, 573, 852 N.Y.S.2d 229 ). "The insured has the burden of establishing that the loss sustained was caused by an uninsured vehicle, namely, that physical contact occurred, that the identity of the owner and operator of the offending vehicle could not be ascertained, and that the insured's efforts to ascertain such identity were reasonable" ( Matter of Nova Cas. Co. v. Musco, 48 A.D.3d at 573, 852 N.Y.S.2d 229 ).
Here, Kokotos met his burden of establishing physical contact between his vehicle and a hit-and-run vehicle with his testimony, credited by the Supreme Court, that he lost control of his vehicle after he was struck from behind by another vehicle, which then fled the scene. The record supports the court's determination to deny that branch of the petition which was to permanently stay arbitration and to dismiss the proceeding (see Matter of American Tr. Ins. Co. v. Caba, 137 A.D.3d 1018, 1019–1020, 27 N.Y.S.3d 603 ; Matter of Nova Cas. Co. v. Musco, 48 A.D.3d at 573, 852 N.Y.S.2d 229 ).
RIVERA, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.