Opinion
No. 12993/14.
06-10-2015
In the Matter of The Petition of STATE FARM MUTUAL INSURANCE AUTOMOBILE COMPANY, Petitioner, for an Order staying the arbitration attempted to be had by Janet RILEY, Respondent. and Albert Troy Smith, Kiwani Smith, Ester Mancini, Geico General Insurance Company and Elephant Insurance Company, Proposed Additional Respondents.
Montfort, Healy, McGuire & Salley, LLP, Garden City, for Geico. D:mato & Lynch, LLP, New York, for Elephant Insurance Company Megan Marchick Le, Esq.
Montfort, Healy, McGuire & Salley, LLP, Garden City, for Geico.
D:mato & Lynch, LLP, New York, for Elephant Insurance Company Megan Marchick Le, Esq.
Opinion
FRANCOIS A. RIVERA, J.
By notice of petition and petition filed on September 9, 2014, State Farm Mutual Insurance Automobile Company (hereinafter State Farm or petitioner) seeks an order pursuant to CPLR 7503(c) staying Janet Riley's (hereinafter Riley or the respondent) demand for uninsured motorist arbitration.
BACKGROUND
On September 9, 2014, State Farm commenced the instant proceeding by filing a notice of petition and petition with the Kings County Clerk's office. The petition contains eighteen allegations of fact in support of an order to stay an arbitration proceeding demanded by Riley pursuant to CPLR 7503(c).
The petition alleges in pertinent part that on August 29, 2014, State Farm received by mail a demand for uninsured motorist (hereinafter UM) benefits from respondent Riley under a policy of insurance issued to her based on an automobile accident that occurred on August 3, 2013. State Farm annexed a police accident report to its petition and inferred that Riley was a passenger in an automobile involved in a collision with another vehicle.
Respondent has opposed the motion with an affirmation of her counsel and three annexed exhibits. Exhibit A is a letter from Geico General Insurance Company (hereinafter GEICO) to Riley denying her claim. Exhibit B is a copy of a letter from Elephant Insurance Company to Tashira Smith's counsel. Exhibit C is a copy of a default judgment order dated June 11, 2014 against Troy Albert Smith and Kiwana Smith in a Kings County Supreme Court case bearing index number 21796/ 20013.
Proposed additional respondent GEICO has opposed the petition with an affirmation of its counsel and one annexed exhibit, namely, an order issued on July 24, 2014, by Queens County Supreme Court Justice Raffaele under index number 9074/2014.
Proposed additional respondent Ester Mancini has opposed the petition with an affirmation of her counsel.
Proposed additional respondent Elephant Insurance Company (hereinafter Elephant) has opposed the petition with its counsel's affirmation, supplemental affirmation and fifteen annexed exhibits.
State Farm has replied to Elephant's opposition with an affirmation of its counsel.
LAW AND APPLICATION
CPLR 7503(c) provides in pertinent part that an application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded.
State Farms' petition is verified by its counsel pursuant to CPLR 3020(d)(3) entirely on information and belief and is not evidence of any of the matters asserted therein. The petition may not be used as State Farm's affidavit pursuant to CPLR 105(u). The petition does not contain an affidavit by anyone with personal knowledge of any allegation of facts set forth therein. The petition refers to five annexed exhibits labeled A through E. Exhibit A is described as Riley's demand for arbitration. Exhibit B is described as a police accident report or MV–104 of the accident that is the subject of the petition. Exhibit C is described as a New York State Department of Motor Vehicles Insurance Activity Expansion report. Exhibit D is described as a copy of a typical supplementary uninsured/underinsured motorist endorsement pending UM benefits. Exhibit E is described as copy of State Farm's discovery demands directed to Riley.
The annexed police accident report and the New York State Department of Motor Vehicles Insurance Activity Expansion report are not certified and are not otherwise in admissible form. State Farm did not annex a copy of Riley's insurance contract to its petition. Nor does the petition aver that the copy of the supplementary uninsured/underinsured motorist endorsement annexed to the petition is in fact the endorsement language that is contained in Riley's insurance contract.
In sum, State Farm's petition is not supported by sworn allegations of fact from anyone with personal knowledge or with admissible evidence demonstrating its entitlement to the relief it is requesting. Consequently, the court need not address the sufficiency of the respondent and proposed additional respondents' opposition papers.
CONCLUSION
State Farm Mutual Insurance Automobile Company's petition for an order pursuant to CPLR 7503(c) staying respondent Janet Riley's demand for uninsured motorist arbitration is denied and the petition is dismissed.
The foregoing constitutes the decision and order of this court.