Opinion
May 2, 1994
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the judgment is reversed, on the law, with costs payable by petitioner-respondent, the petition is denied, and State-Wide Insurance Company and its insured Wilfredo Morales are directed to proceed to arbitration.
It is well-settled that an insurer seeking a stay of arbitration of an uninsured motorist claim has the burden of going forward to establish that the offending vehicle was insured at the time of the accident (see, Matter of Eagle Ins. Co. v Tichman, 185 A.D.2d 884; Matter of Aetna Cas. Sur. Co. v McMichael, 176 A.D.2d 315; Matter of Nationwide Ins. Co. [Dye-Metro. Prop. Liab. Ins. Co.], 170 A.D.2d 683; Matter of Insurance Co. v. Castro, 163 A.D.2d 313; Matter of Insurance Co. v Castillo, 158 A.D.2d 691). Once an insurer establishes a prima facie case, the burden shifts to the party opposing the stay to come forward with evidence to the contrary (see, Matter of Nationwide Ins. Co. [Dye-Metro. Prop. Liab. Ins. Co.], supra; Matter of Insurance Co. v. Castillo, supra).
In the case at bar it is undisputed that the vehicle insured by the respondent, Liberty Mutual Insurance Company (hereinafter Liberty) was reported to the police as stolen three days prior to the happening of the accident and after the term of the rental agreement expired without the vehicle's return. Moreover, at the time of the accident, the vehicle, which had been rented under false pretenses, was apparently being driven by someone other than the individual who rented the car. Under these circumstances, Liberty met its burden of establishing that the car was being driven without the owner's consent when the accident took place and thus was uninsured (see, Matter of Utica Mut. Ins. Co. [Lahey — Liberty Mut. Ins. Co.], 95 A.D.2d 150; cf., Allstate Ins. Co. v. Dailey, 47 A.D.2d 375, affd 39 N.Y.2d 759).
In addition, we note that "[n]otwithstanding the policy of this State to the effect that there should be recourse to a financially responsible defendant for one injured by the negligent operation of an automobile * * * [a]n innocent victim of an accident may not recover from a lessor or other owner when the offending vehicle was being operated without the owner's permission" (Matter of Utica Mut. Ins. Co. [Lahey — Liberty Mut. Ins. Co.], supra, at 153).
Accordingly, the petitioner's application to stay arbitration of the uninsured motorist claim is denied. Mangano, P.J., Thompson, Joy and Friedmann, JJ., concur.