Opinion
April 12, 1994
Appeal from the Supreme Court, Queens County, Edwin Kassoff, J., Robert Groh, J.
After a hearing the IAS Court properly determined that respondent's failure to have filed with petitioner a statement under oath pertaining to the specifics of a 1989 hit and run incident did not, as a matter of law, bar his request to seek coverage under the uninsured motorist coverage provision (see, Matter of Empire Ins. Co. v Kaparos, 183 A.D.2d 566). Here, respondent obtained a copy of the police report prepared at the scene of the accident and forwarded it, together with a written report of the accident, to petitioner, which had insured the vehicle operated by respondent and which was involved in the incident. Respondent was neither the owner of the vehicle, nor the insured under the policy. These materials were reviewed by petitioner, which requested additional information from respondent without any mention of the need for a sworn statement until well over one year later. Since respondent did not have possession of the policy and was unaware of the 90 day provision for the filing of a sworn statement concerning the incident, which petitioner had timely notice of, the court properly excused the delay in denying petitioner's request for a stay of the demand for arbitration under the policy (compare, Matter of Eagle Ins. Co. [Chowdhury], 149 Misc.2d 227, with Matter of Home Indem. Co. v Messana, 139 A.D.2d 513).
Concur — Sullivan, J.P., Asch, Nardelli and Tom, JJ.