Opinion
Index No. 150770/2023
12-01-2023
In the Matter of the Application for An Order Staying Arbitration Between Progressive Insurance Company, Petitioner, v. Louis J. Otero, Respondent.
Counsel for the Petitioner: Rasleen K Sahni, Morris Duffy Alonso Faley & Pitcoff Counsel for the Respondent: Vel Belushin, LAW OFFICE OF VEL BELUSHIN, P.C.
Unpublished Opinion
Counsel for the Petitioner: Rasleen K Sahni, Morris Duffy Alonso Faley & Pitcoff
Counsel for the Respondent: Vel Belushin, LAW OFFICE OF VEL BELUSHIN, P.C.
HON. RONALD CASTORINA, JR. JUSTICE.
The following e-filed documents listed on NYSCEF (Motion #002) numbered 10-17 were read on this motion.
Upon the foregoing documents, and after oral argument completed on November 30, 2023, on Motion Sequence #002, Motion Sequence #002 is resolved and therefore, it is hereby, ORDERED that Respondent's request to lift the stay and to restore this matter to active status is GRANTED; and it is further, ORDERED, that a hearing shall be conducted on the issue of whether the respondent was involved in an accident with a "hit-and-run" vehicle and whether respondent timely reported this "hit-and-run" accident to the police; and it is further, ORDERED, that parties shall appear for a status conference on December 19, 2023, at 9:30 AM at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
In an action for money damages arising out of a hit and run car accident on March 9, 2023, Respondent made a demand for uninsured motorist arbitration on March 29, 2023. On April 25, 2023, Petitioner filed a Motion staying this case and as result, on May 25, 2023, this arbitration was marked stayed without prejudice, pending compliance with Police Report filing procedure.
Respondent filed Motion Sequence #002 on October 24, 2023, seeking to lift the stay placed on this case and to restore respondent's case to the active status, together with such other and further relief as may be deemed just and proper. On November 2, 2023, Petitioner filed opposition to Motion Sequence #002. Respondent filed reply on November 17, 2023. Oral argument was heard on November 30, 2023
II. Facts
On March 9, 2023, Respondent was operating his motor vehicle and was involved in a hit and run accident, at or near the intersection of Oranite Avenue and Lasalle Street, in the County of Richmond, State of New York. As a result of the subject hit and run accident, Respondent allegedly suffered a "serious injury" as defined by NY CLS Ins § 5102 . Immediately right after the accident on March 9, 2023, Respondent was admitted to Richmond University Medical Center and he remained there until March 11, 2023. Respondent did not have the ability to file a Police Report at that time. However, respondent did file a MV-104 Report, dated March 12, 2023. (NY St Cts Filing [NYSCEF] Doc No. 11).
Petitioner contends Respondent has failed to submit sufficient proof that he was involved in an accident with a "hit-and-run" motorist and that there was physical contact between the respondent's vehicle and the purported "hit-and-run" vehicle, or that he reported the "hit-and- run" accident within 24 hours or as soon as reasonably possible to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, a necessary condition precedent to arbitration.
Petitioner further contends the MV-104 submitted by the Respondent is dated, March 12, 2023, which was three days after the alleged "hit-and-run". No proof was provided by the Respondent that the MV-104 was filed with the State or that it was provided to the Petitioner as required by the policy.
III. Discussion
"The term 'uninsured motor vehicle' means a motor vehicle that, through its ownership, maintenance or use, results in bodily injury to an insured, and for which the owner and operator cannot be identified (including a hit-and-run motor vehicle), and which causes bodily injury to an insured by physical contact with the insured or with a motor vehicle occupied by the insured at the time of the accident, provided that: the insured or someone on the insured's behalf: reported the accident within 24 hours or as soon as reasonably possible to a police, peace or judicial officer or to the Commissioner of Motor Vehicles[.]" (see 11 NYCRR § 60-2.3 [c] [2] [i] [a]).
"[T]he requirement of notice within 24 hours serves the important functions of preventing fraudulent claims and of giving the police an opportunity to investigate and bring the hit-and-run driver to justice[.]" (see Canty v. Motor Vehicle Acci. Indemnification Corp., 95 A.D.2d 509 [2d Dept 1983] citing Dixon v. Motor Vehicle Acci. Indemnification Corp., 56 A.D.2d 650 [2d Dept 1977]; Bonavisa v. Motor Vehicle Acci. Indemnification Corp., 21 Misc.2d 963 [Sup Ct, New York, 1960]).
"The fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such a report or that it was made as soon as was reasonably possible." (see NY CLS Ins § 5208 [a] [2] [B]).
"[C]ourts have 'consistently afforded a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator's obtaining a written report'" (see Matter of Gurvich v Motor Veh. Acc. Indem. Corp., 66 A.D.3d 677 [2d Dept 2009] quoting Country Wide Ins. Co. v. Russo, 201 A.D.2d 368 [1st Dept 1994] citing Canty v. Motor Vehicle Acci. Indemnification Corp., 95 A.D.2d 509 [2d Dept 1983]; Dixon v. Motor Vehicle Acci. Indemnification Corp., 56 A.D.2d 650 [2d Dept 1977]).
The only evidence that Respondent has submitted as an exhibit attached to their motion to restore is a MV-104 dated March 12, 2023, three days after the accident. Respondent failed to provide any proof that the MV-104 was filed or even mailed as required by the state. The MV-104 is not provided with any affidavit from the respondent. Respondent's further fails to explain why the MV-104 was not provided with their original opposition to Petitioner's Petition to Stay.
"The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay" (see Matter of Government Employees Ins. Co. v Tucci, 157 A.D.3d 679 [2d Dept 2018] quoting Matter of Hertz Corp. v. Holmes, 106 A.D.3d 1001 [2d Dept 2013]; Matter of AutoOne Ins. Co. v Umanzor, 74 A.D.3d 1335 [2d Dept 2010] citing Matter of Allstate Ins. Co. v Martinez, 140 A.D.3d 743 [2d Dept 2016]; Matter of Government Employees Ins. Co. v Hua Huang, 139 A.D.3d 950 [2d Dept 2016]; Matter of Government Empls. Ins. Co. v Arciello, 129 A.D.3d 1083 [2d Dept 2015]; Matter of Farmers Ins./Truck Ins. Exch. v Terzulli, 112 A.D.3d 628 [2d Dept 2013]).
"Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing" (see id quoting Matter of Merchants Preferred Ins. Co. v Waldo, 125 A.D.3d 864 [2d Dept 2015]).
"Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue" (see id Matter of Allstate Ins. Co. v Aizin, 102 A.D.3d 679 [2d Dept 2019]).
Here, Petitioner failed to show the existence of evidentiary facts regarding Respondent's failure to satisfy the reporting requirement or whether there was physical contact with a hit-and-run vehicle, since, as to those issues, it only provided the unsupported, conclusory assertions of its attorney. (see id citing Matter of Merchants Preferred Ins. Co. v Waldo, 125 A.D.3d 864 [2d Dept 2015]; Matter of AutoOne Ins. Co. v Umanzor, 74 A.D.3d 1335 [2d Dept 2010]; Matter of Government Employees Ins. Co. v Hua Huang, 139 A.D.3d 950 [2d Dept 2016]).
Accordingly, Respondent's request to lift the stay and to restore this case to the active status is GRANTED; and it is further, ORDERED, that a hearing shall be conducted on the issue of whether the respondent was involved in an accident with a "hit-and-run" vehicle and whether respondent timely reported this "hit-and-run" accident to the police; and it is further, ORDERED, that parties shall appear for a status conference on December 19, 2023, at 9:30 AM at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.