Opinion
501756/19
04-25-2019
In the Matter of the Petition of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. Akilah BANDELE, Defendants.
Attorney for Petitioner, Arthur T. Kontaxis, Esq., P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, NY 11753, (516) 229-6000 Attorney for Respondent, Abraham & Abraham, 130-22 Rockaway Boulevard, South Ozone Park, NY 11420, (718) 848-3165, American Arbitration Association, 32 Old Slip, 33rd Floor New York, NY 10005
Attorney for Petitioner, Arthur T. Kontaxis, Esq., P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, NY 11753, (516) 229-6000
Attorney for Respondent, Abraham & Abraham, 130-22 Rockaway Boulevard, South Ozone Park, NY 11420, (718) 848-3165, American Arbitration Association, 32 Old Slip, 33rd Floor New York, NY 10005
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and petition filed on January 25, 2019, under motion sequence one, by petitioner State Farm Mutual Automobile Insurance Company (hereinafter State Farm) for an order: (1) pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist (hereinafter UM) claim; or in the alternative, (2) to temporarily stay arbitration of the UM claim pending a hearing to determine whether the offending vehicle in the subject accident was uninsured; or in the alternative, (3) to temporarily stay arbitration of the UM claim pending a response to State Farm's discovery demands.
Notice of Petition and Petition
Exhibits A-D
BACKGROUND
By notice of petition, verified petition, and supporting documents filed on January 25, 2019, State Farm commenced the instant special proceeding pursuant to CPLR Article 75, seeking, among other things, to permanently stay an arbitration of a claim for UM benefits demanded by its insured, respondent Akilah Bandele (hereinafter Bandele). Bandele neither appeared nor opposed the petition.
The petition alleges the following significant facts. State Farm had issued a motor vehicle insurance policy to Bandele which provided, inter alia, uninsured motorist coverage in the amount of $ 25,000.00 per person and $ 50,000.00 per accident (hereinafter the subject policy). On January 7, 2019, State Farm received a demand for arbitration of a claim for UM benefits from Bandele based on a collision which occurred on August 21, 2017 in Queens, New York. Bandele claimed that at the time of the accident she was operating her motor vehicle and that her vehicle was covered by the subject policy issued by State Farm. State Farm alleges that Bandele did not establish a valid claim for uninsured motorist coverage.
LAW AND APPLICATION
State Farm by the instant petition has commenced a special proceeding to, among other things, permanently stay an arbitration. The petition in a special proceeding is analogous to the complaint in an action. CPLR 402 governs the pleadings requirements for special proceedings and provides as follows:
There shall be a petition, which shall comply with the requirements for a complaint in an action, and an answer where there is an adverse party. The procedure for special proceedings contemplates that the petition will be accompanied by affidavits demonstrating the evidentiary grounds for the relief requested (see CPLR 403[a] ).
The purpose of an affidavit is to enable the matter to be brought before the court for summary disposition, as in the case of motion practice.
A party seeking a stay of arbitration of a claim for UM benefits has the initial burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay ( Government Employees Ins. Co. v. Hua Huang , 139 AD3d 950, 951 [2nd Dept 2016] citing Matter of Hertz Corp. v. Holmes , 106 AD3d 1001, 1003 [2nd Dept 2013] ). Thereafter, the burden is on the party opposing the stay to rebut the prima facie showing (Matter of Hertz Corp. , 106 AD3d at1003 citing, Metropolitan Property & Cas. Ins. Co. v. Singh , 98 AD3d 580 [2nd Dept 2012] ).
CPLR Rule 2214 (a) and (c), in pertinent part, provide the following:
(a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
(c) Furnishing papers to the court. Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved.
State Farm's motion papers contain several deficiencies. The petition contains allegations apparently made by State Farm's counsel based on information and belief. The petition, however, is not verified and, therefore, may not serve as an affidavit (see CPLR 105 (u) ; Worldwide Assets Publishing LLC v. Karafotias , 9 Misc 3d 390 [Civ.Ct., Kings County 2005] ). In fact, State Farm's papers contains no sworn allegations of fact by anyone with personal knowledge of any of the facts asserted therein.
Inasmuch as the petition and its annexed supporting documents contains no allegation of fact based on personal knowledge, it provides no sworn evidence of any of the matters asserted therein (see Martinez v. Reiner , 104 AD3d 477, 478 [1st Dept 2013] ). State Farm has annexed four exhibits to the petition, namely, a copy of Bandele's demand for arbitration, a police accident report, a copy of a Supplementary Uninsured Motorist Endorsement, and State Farm's discovery demands to Bandele.
Bandele's demand for arbitration does not provide evidentiary support for either a permanent or temporary stay of arbitration. The police report, or MV 104AN, is not certified and State Farm's petition does not contain an affidavit or other sworn evidence from someone with personal knowledge to establish its authenticity or accuracy. It is, therefore, inadmissible and disregarded (see CPLR 4518 (c) ; Peerless Insurance Company v. Milloul , 140 AD2d 346 [2nd Dept 1988] ).
Furthermore, contrary to CPLR 2214 (c), State Farm has not furnished the court with a copy of the subject policy, including its UM endorsement, that it provided to Bandele (see State Mutual Automobile Insurance Company v. Mercado , 70 AD2d 513 [1st Dept 1979] ).
State Farm alleges that is entitled to certain discovery pursuant to certain provisions in the subject policy. By not annexing the subject policy to its petition papers, however, State Farm cannot and did not demonstrate its entitlement to discovery.
In light of the foregoing, that branch of State Farm's petition which seeks a permanent stay or, in the alternative, a temporary stay of uninsured motorist arbitration is denied regardless of the sufficiency, or lack thereof, of the opposing papers ( Cugini v. System Lumber Co., Inc., 111 AD2d 114 [1st Dept 1985] citing, Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ).
CONCLUSION
That branch of State Farm's petition seeking an order permanently staying an uninsured motorist arbitration is denied.
That branch of State Farm's petition seeking an order temporarily staying an uninsured motorist arbitration is denied.
The foregoing constitutes the decision and order of this court.