Opinion
No. 2023-04683 Index No. 511691/22
10-09-2024
In the Matter of Old Republic Insurance Company, respondent, v. Noel Scott, appellant.
Salerno & Goldberg, P.C., Deer Park, NY (Allen Goldberg of counsel), for appellant. Gartner + Bloom, P.C., New York, NY (Michael J. Hemway of counsel), for respondent.
Salerno & Goldberg, P.C., Deer Park, NY (Allen Goldberg of counsel), for appellant.
Gartner + Bloom, P.C., New York, NY (Michael J. Hemway of counsel), for respondent.
ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS, JOSEPH J. MALTESE LILLIAN WAN, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary underinsured motorist benefits, Noel Scott appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated March 17, 2023. The order, without a hearing, granted the petition and, in effect, permanently stayed the arbitration.
ORDERED that the order is affirmed, with costs.
The petitioner commenced this proceeding against Noel Scott to permanently stay arbitration of a claim for supplementary underinsured motorist benefits. The claim arose out of an automobile accident that occurred when a vehicle operated by Scott was stopped at an intersection and struck in the rear by a vehicle operated by Martha Quizhpi. In an order dated March 17, 2023, the Supreme Court, without a hearing, granted the petition and, in effect, permanently stayed the arbitration. Scott appeals.
"'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'" (Matter of Infinity Indem. Ins. Co. v Leo, 213 A.D.3d 936, 938, quoting Matter of Northeast & Cent. Contrs., Inc. v Quanto Capital, LLC, 203 A.D.3d 925, 928). "'Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing'" (id., quoting Matter of Northeast & Cent. Contrs., Inc. v Quanto Capital, LLC, 203 A.D.3d at 928).
While Scott correctly contends that the petitioner could not rely on evidence submitted for the first time in reply to sustain its prima facie burden (see Matter of Standard Fire Ins. Co. v Sanchez, 222 A.D.3d 761, 762; Matter of Allstate Ins. Co. v Dawkins, 52 A.D.3d 826, 826-827), the evidence submitted by the petitioner in support of the petition satisfied its prima facie burden of demonstrating its entitlement to a permanent stay of arbitration (see Matter of Standard Fire Ins. Co. v Sanchez, 222 A.D.3d at 762). In opposition to the petition, Scott failed to raise an issue of fact as to whether he was entitled to supplementary underinsured motorist benefits under the subject insurance policy.
Accordingly, the Supreme Court properly granted the petition to permanently stay arbitration (see Matter of GEICO Ins. Co. v Rice, 167 A.D.3d 884, 885; Matter of Government Empls. Ins. Co. v Beltran, 120 A.D.3d 684, 685; cf. Matter of Standard Fire Ins. Co. v Sanchez, 222 A.D.3d at 762).
IANNACCI, J.P., CHAMBERS, MALTESE and WAN, JJ., concur.