Opinion
25277/2018E
04-05-2019
In the Matter of the Application of the AMERICAN TRANSIT INSURANCE COMPANY, Petitioner, To Stay the Arbitration sought to be had by v. Darlene RAMIREZ, Respondent, and Mariluz Diaz, Progressive Advanced Insurance Company, Proposed Additional Co-Respondents.
Petitioner American Transit Insurance Company represented by Jacqueline I. Roman, Esq., Law Offices of Richard A. Reinstein PC, One Metro Tech Center, 8th Floor, Brooklyn, NY 11201. Respondent Darlene Ramirez represented Ilene Kaplan, Esq., Law Offices of Frekhtman & Associates, 60 Bay 26th Street, Brooklyn, NY 11214. Proposed Additional Co-respondents represented by Michael Gertzer, Esq., the Law Offices of Jennifer S. Adams, 1 Executive Blvd. Ste 280, Yonkers, NY 10701. American Arbitration Assn., 65 Broadway, New York, NY 10006
Petitioner American Transit Insurance Company represented by Jacqueline I. Roman, Esq., Law Offices of Richard A. Reinstein PC, One Metro Tech Center, 8th Floor, Brooklyn, NY 11201.
Respondent Darlene Ramirez represented Ilene Kaplan, Esq., Law Offices of Frekhtman & Associates, 60 Bay 26th Street, Brooklyn, NY 11214.
Proposed Additional Co-respondents represented by Michael Gertzer, Esq., the Law Offices of Jennifer S. Adams, 1 Executive Blvd. Ste 280, Yonkers, NY 10701.
American Arbitration Assn., 65 Broadway, New York, NY 10006
Llinet M. Rosado, J.
On August 11, 2017, on East Tremont Avenue at or near 3rd Avenue in Bronx County, the respondent, Darlene Ramirez (Ramirez), was a passenger in a motor vehicle, operated by Alioune Niang (Niang), owned by Sheriff Cessay, and insured by petitioner AMERICAN TRANSIT INSURANCE COMPANY (ATIC), when the vehicle she was riding in was struck by a motor vehicle (offending vehicle) owned by proposed additional respondent MARILUZ DIAZ (Diaz), and allegedly insured by proposed additional respondent PROGRESSIVE ADVANCED INSURANCE COMPANY (herein after "Progressive"). The driver of the offending vehicle at the time and place of the accident was not Diaz and said driver left the scene of the accident. By demand dated April 17, 2018, respondent Ramirez requested arbitration of her uninsured motorist's claim from petitioner ATIC. In response to said demand, AITC commenced this special proceeding pursuant to CPLR 7503 for a judgment staying the arbitration demanded by Ramirez. ATIC's claim for a stay rest on the ground that the offending vehicle was insured under a policy issued to Diaz by proposed additional co-respondent Progressive Advanced Insurance Company (PAIC).
The Court conducted a framed-issue hearing on February 25, 2019 as to whether PAIC was obligated to insure respondent Ramirez. At the hearing, the parties stipulated to the entry of the following evidence: a Police Accident Report, dated August 11, 2017 (Petitioner's 1); NYPD Complaint filed by Niang (Proposed Additional Co-Respondent's B); and NYPD Complaint filed by Diaz and Diaz's NYPD PETS property clerk invoice for offending vehicle (Proposed Additional Co-Respondent's C). The only witness that testified was Diaz.
Diaz testified that she owned the offending vehicle and that on August 11, 2017 she returned home at 3am with Jose Perez. She testified further that when she woke up Jose Perez was gone. At 9 am, Diaz began to do laundry. Between 10:30 am and 11:30am, Diaz went to get her wallet which were attached to her keys and located on her television stand in her bedroom. At that point, she realized that her car keys were missing from her key ring. Diaz went downstairs to where she had parked her vehicle and it was not there. Diaz called the police and filed a complaint (Proposed Respondent's C). Diaz testified that she never gave Jose Perez permission to take her vehicle and that Jose Perez called her on August 13, 2017 and told her he took the vehicle and informed her of the location where he had left it. Diaz went to the location and found the vehicle with no plates and the bumper was messed up. Diaz called the police and they came and inspected the car. Upon completion of their inspection of the vehicle, the police gave Diaz a NYPD PETS property clerk invoice for offending vehicle (Proposed Respondent's C). Diaz's testimony was not controverted.
Petitioner met its initial burden of going forward to show that the offending vehicle herein was insured thereby shifting the burden to the offending vehicle's purported insurer. see Allstate Ins Co v. Rivera , 148 AD2d 393, 589 NYS2d 337 (1st Dept 1989).
In view of the forgoing, this Court finds that the presumption of permissive use was overcome by the credible testimony of Diaz and the submitted evidence. State Farm Fire & Cas. Co. v. Hayes , 78 AD3d 1063, 912 N.Y.S.2d 588, 589 (2nd Dept 2010). The additional proposed respondents established that the driver of the offending vehicle did not have permission, expressed or implied, to drive Diaz's vehicle on the date and time of the accident. As such, petitioner is precluded from disclaiming coverage; the petitioner's demand for a permanent stay of the arbitration demanded by respondent Ramirez is denied; and the proposed additional respondents are hereby discharged. Petitioner is, however, entitled to a temporary stay of such arbitration pending discovery.
Accordingly, it is hereby
ORDERED that the petitioner's demand for a permanent stay of the arbitration demanded by respondent Ramirez is denied; it is further
ORDERED that the arbitration moves forward; it is further
ORDERED that parties shall conduct and conclude the discovery as required by the contractual obligations of the insurance policy within 120 days of the date of this order, after which time, the parties shall proceed to arbitration.
This decision and order constitutes the judgment of this court.