Opinion
April 6, 1989
Appeal from the Supreme Court, New York County (Ethel B. Danzig, J.).
Respondents demanded arbitration of a claim for uninsured motorist coverage under an insurance policy issued by petitioner to Goody Goody Transport, Inc., the owner of the 1975 Chevrolet sedan struck by a concededly uninsured and unregistered vehicle on September 24, 1983.
Upon their motion for reargument, respondents presented a duplicate return receipt obtained from the post office in December 1987 which confirms that the demand for arbitration, mailed January 3, 1986 according to the affidavit of service, was delivered to petitioner on January 7, 1986. However, petitioner did not commence the proceeding to stay arbitration until April 1987.
Petitioner admits that it had insured the 1975 Chevrolet under an assigned risk policy, number AR-90884, effective December 31, 1982, but states that coverage was canceled with respect to this vehicle and transferred to a 1979 Chrysler, effective March 18, 1983, at the request of the insured's broker. Subsequently, the policy was canceled by petitioner effective June 23, 1983. Respondents, however, maintain that the notice of cancellation issued by petitioner at that time was ineffective for failure to comply with Vehicle and Traffic Law § 313 (3).
Respondents maintain that the petition to stay arbitration was untimely brought pursuant to CPLR 7503 (c). However, application of that rule presumes the existence of a viable agreement to arbitrate, and where no contract containing an arbitration agreement is in effect, a stay is appropriate whether or not the proceeding is timely brought (Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264). Furthermore, where cancellation is initiated by the insured, the carrier is not required to send the insured notice (Hanover Ins. Co. v. Eggelton, 88 A.D.2d 188, affd 57 N.Y.2d 1020; Zulferino v. State Farm Auto. Ins. Co., 123 A.D.2d 432).
The documents annexed to the pleadings raise an issue of fact as to cancellation of insurance with respect to the automobile in which respondents were riding. An insurance identification card issued by petitioner for the vehicle indicates an effective date of coverage of March 28, 1983, 10 days after coverage was allegedly transferred to the 1979 Chrysler. In addition, a printout of Department of Motor Vehicles records, obtained by respondents in January 1986, lists petitioner as the insurance carrier for the vehicle under a policy which expired on December 31, 1983. There is no indication of a transfer of coverage to a 1979 Chrysler or of any cancellation prior to the stated expiration date. Therefore, there is sufficient question as to the insured status of the vehicle to warrant a hearing on the issue of insurance coverage (CPLR 409 [b]).
Concur — Murphy, P.J., Asch, Rosenberger, Smith and Rubin, JJ.