Opinion
11847/15
01-15-2016
In the Matter of the Petition of The Hartford Insurance Company, Petitioner, For an Order permanently staying the arbitration attempted to be had by v. Sydney Brown, Respondent, - and - FOUNDERS INSURANCE COMPANY, HENRY DONALD a/k/a DONALD HENRY, and LAJAUNE T. DYKE, Proposed Additional Respondent.
Attorney for Petitioner Jeffrey Lewis, Esq. Law Offices of Tobias & Kuhn 100 William Street, Suite 920 New York, NY 10038 Attorney for Respondent Carly Underwood, Esq. The Rybak Firm, PLLC 1810 Voorhies Avenue, Ste 7 Brooklyn, NY 11235 Attorney for Additional Respondent Sandra L. Bonder, Esq. Camacho Mauro Mulholland, LLP 40 Wall Street, 40th Floor New York, NY 10005
Attorney for Petitioner Jeffrey Lewis, Esq. Law Offices of Tobias & Kuhn 100 William Street, Suite 920 New York, NY 10038 Attorney for Respondent Carly Underwood, Esq. The Rybak Firm, PLLC 1810 Voorhies Avenue, Ste 7 Brooklyn, NY 11235 Attorney for Additional Respondent Sandra L. Bonder, Esq. Camacho Mauro Mulholland, LLP 40 Wall Street, 40th Floor New York, NY 10005 Francois A. Rivera, J.
By notice of petition and petition motion filed on September 25, 2015, under motion sequence number one, petitioner The Hartford Insurance Company (hereinafter Hartford) has moved for an order: (1) permanently staying arbitration; and (2) adding Founders Insurance Company, Henry Donald a/k/a Donald Henry and Lajune T. Dyke as additional respondents; and in the alternative, (3) temporarily staying arbitration until discovery is completed.
Notice of petition and petition
Affirmation in support
Exhibits A-C
Affirmation in opposition by Founders Insurance Company
Exhibits A-E
Affirmation in opposition by Sydney Brown
Exhibits 1-2
BACKGROUND
By notice of petition and petition filed on September 25, 2015, Hartford commenced the instant CPLR Article 75 proceeding to permanently stay an uninsured motorist arbitration. Respondent Sydney Brown (hereinafter Brown) and proposed additional respondent Founders Insurance Company (hereinafter Founders) have opposed the motion.
The petition alleges in pertinent part the following salient facts. Hartford issued an automobile insurance policy to Brown with an uninsured motorist bodily limit of $100,00.00 per person and $300,00.00 per accident (hereinafter the Hartford policy). On April 21, 2014, Brown allegedly operated an automobile involved in a motor vehicle accident with another vehicle. The other vehicle involved in that accident was operated by Lajaune T. Dyke, owned byHenryDonald,andinsured by Founders.
On September 14, 2015, Hartford received a demand for arbitration from Brown setting forth a claim for uninsured motorist coverage arising out of the April 21, 2014 accident. Brown allegedly did not comply with the Uninsured Motorist Endorsement of the Hartford policy. LAW AND APPLICATION
Petitioner 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 the affidavits is to enable the matter to be brought before the court for summary disposition, as in the case of motion practice.
CPLR Rule 2214 (a) and (c) provides in pertinent part as follows: (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. ...
Petitioner's motion papers contain the following deficiencies, among others. Contrary to the requirements of CPLR 2214 (a), petitioner did not set forth what law or statute it is invoking to obtain the relief of a stay of arbitration or to add the proposed additional respondents. Furthermore, despite the simple statutory procedure for doing so, CPLR 2214 (c), petitioner has not furnished the court with a copy of the Hartford policy (see State Mutual Automobile Insurance Company v Mercado, 70 AD2d 513 [1st Dept 1979]).
The petition is verified by Hartford's counsel and contains allegations of fact based on information and belief. The petition may, therefore, not serve as an affidavit of Hartford (see CPLR 105 (u); Worldwide Assets Publishing LLC v Karafotias, 9 Misc 3d 390 [Civ.Ct., Kings County 2005]).
Inasmuch as the petition is only supported by an affirmation of Hartford's counsel and contains no allegation of fact based on personal knowledge, it is not evidence of any of the matters asserted (see Brusco v Braun, 199 AD2d 27 at 31—32 [1st Dept 1993]).
However, the affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may of course, serve as a vehicle for the submission of acceptable attachment which do provide evidentiary proof in admissible form such as documents and transcripts (see Worldwide Assets Publishing LLC v Karafotias, supra, 9 Misc 3d at 395 citing Zuckerman v City of New York, 49 NY2d 563 [1980]).
The next inquiry then is whether the attachments to the petition present evidentiary proof in admissible form. Hartford has annexed three exhibits to the petition, namely, a copy of Brown's demand for arbitration, a police accident report, and a letter purportedly issued by Founders.
Brown'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 the petition does not contain an affidavit or other sworn evidence from someone with personal knowledge 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]). Similarly, there is no sworn evidence from someone with personal knowledge to establish the authenticity or accuracy of the letter purportedly from Founders. It is also inadmissible and properly disregarded (See Matter of Metropolitan Property & Liability Co. v Pisanelli, 175 AD2d 469 [3rd Dept 1991] citing Peerless Insurance Company v Milloul, 140 AD2d 346 [2nd Dept 1988]). Furthermore, by not providing a copy of the Hartford Policy, Hartford is unable to make a prima facie showing of its claim that Brown violated any of its provisions.
In light of the foregoing, that branch of Hartford's petition which seeks a permanent stay or, in the alternative, a temporary stay of uninsured motorist arbitration is denied without regard to the sufficiency of Brown or Founder's opposition papers (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]).
As previously indicated, contrary to CPLR 2214 (a), Hartford cited no legal authority for its request to add Founders Insurance Company, Henry Donald a/k/a Donald Henry and Lajune T. Dyke as additional respondents. CPLR 401 provides that the party commencing a special proceeding shall be styled the "petitioner" and any adverse party the "respondent." It further provides that after a proceeding is commenced, no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of court. Inasmuch as Hartford's petition for a stay of arbitration has been denied due its failure to tender evidence in admissible form supporting this relief requested, that branch of its petition seeking to add additional respondents is rendered academic.
CONCLUSION
That branch of Hartford's petition seeking an order permanently staying an uninsured motorist arbitration is denied.
That branch of Hartford's petition seeking an order temporarily staying an uninsured motorist arbitration is denied.
That branch of Hartford's petition seeking an order adding Founders Insurance Company, Henry Donald a/k/a Donald Henry and Lajune T. Dyke as additional respondents is denied as academic.
The foregoing constitutes the decision and order of this Court. Enter:
J.S.C.