Opinion
2014-07-2
In the Matter of GEICO, respondent, v. Diane SELIN, appellant.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Gail S. Lauzon (McNicholas, Lee & Cestaro, P.C., Flushing, N.Y. [Shawn M. Cestaro], of counsel), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Gail S. Lauzon (McNicholas, Lee & Cestaro, P.C., Flushing, N.Y. [Shawn M. Cestaro], of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Diane Selin appeals from an order of the Supreme Court, Kings County (Sunshine, Ct. Atty. Ref.), dated June 10, 2013, which after a hearing, granted the petition and permanently stayed arbitration.
ORDERED that the order is affirmed, with costs.
The appellant sought uninsured motorist benefits, under a policy of insurance issued by the petitioner, for physical injuries she allegedly sustained in a hit-and-run accident. The petitioner commenced this proceeding pursuant to CPLR article 75 to permanently stay the arbitration of the claim.
Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle ( seeInsurance 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;Matter of 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 Specialty Ins. Co. v. Lubeck, 111 A.D.3d 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).
Where, as here, a case is determined after a hearing, this Court's power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing court had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Matter of Progressive Specialty Ins. Co. v. Lubeck, 111 A.D.3d at 948, 976 N.Y.S.2d 153;Matter of Allstate Ins. Co. v. Tae Hong Ji, 81 A.D.3d 940, 917 N.Y.S.2d 576). We decline to disturb the Supreme Court's determination, made after a hearing, that there was no physical contact between the appellant's vehicle and an alleged hit-and-run vehicle ( see Matter of Government Employees Ins. Co. v. Tuzzo, 94 A.D.3d 996, 942 N.Y.S.2d 599; Matter of Government Employees Ins. Co. v. Albino, 91 A.D.3d 870, 937 N.Y.S.2d 294;Matter of Allstate Ins. Co. v. Tae Hong Ji, 81 A.D.3d at 940, 917 N.Y.S.2d 576).
Accordingly, the Supreme Court properly granted the petition and permanently stayed arbitration. HALL, J.P., ROMAN, DUFFY and LaSALLE, JJ., concur.