Opinion
Submitted November 22, 2000.
March 5, 2001.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the appeal is from an order of the Supreme Court, Nassau County (Adams, J.), dated November 16, 1999, which granted the petition.
Akin Smith, LLC, New York, N.Y. (Zafer A. Akin of counsel), for appellant.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court properly granted the petition of Legion Insurance Company (hereinafter Legion) for a permanent stay of arbitration on the ground that the appellant failed, within 90 days of the accident, to file a statement under oath that he has a cause of action arising out of an accident with a "hit-and-run vehicle", a condition precedent to coverage under the uninsured motorists endorsement of the insurance policy. Contrary to the appellant's contention, the unsworn and undated application for no-fault benefits did not constitute such a statement and the failure to comply with the above requirement vitiated coverage (see, Matter of Allcity Ins. Co. [Jimenez], 78 N.Y.2d 1054; Matter of Interboro Mut. Indem. Ins. Co. v. Napolitano, 232 A.D.2d 561; Matter of State Farm Ins. Co. v. Velasquez, 211 A.D.2d 636; Matter of Eveready Ins. Co. v. Ruiz, 208 A.D.2d 923; State Farm Mut. Auto. Ins. Co. v. Romero, 109 A.D.2d 786).
Moreover, contrary to the appellant's contention, Legion timely disclaimed coverage upon first learning of the grounds for such disclaimer (see, Matter of Allcity Ins. Co. [Jimenez], supra; Matter of Interboro Mut. Indem. Ins. Co. v. Napolitano, supra; Matter of State Farm Ins. Co. v. Velasquez, supra).