Opinion
Index No. 519152/2022
04-03-2023
In the Matter of the Application for an Order Staying Arbitration between United Services Automobile Association, Petitioner, v. Catherine G. Collins, Respondent.
Attorney for the Petitioner Richard Petrocelli, Esq. Petrocelli & Christy, LLP Attorney for the Respondent Daniel Gluck, Esq. Zaremba Brown PLLC
Unpublished Opinion
Attorney for the Petitioner
Richard Petrocelli, Esq.
Petrocelli & Christy, LLP
Attorney for the Respondent
Daniel Gluck, Esq.
Zaremba Brown PLLC
HONORABLE FRANCOIS A. RIVERA, J.S.C.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition, filed on August 3, 2022, and the petition, filed on July 5, 2022, under motion sequence one, by petitioner United Services Automobile Association (hereinafter USAA or petitioner) for an order pursuant to CPLR §7503(c), permanently staying the arbitration between the petitioner and respondent Catherine G. Collins (hereinafter respondent); or in the alternative temporarily staying said arbitration, granting a framed issue hearing on the issue of the existence of Uninsured/Underinsured Motorist Coverage; in addition to determining whether the respondent has satisfied conditions precedent to proceeding to Uninsured/Underinsured Motorist Arbitration; directing exchange of all relevant medical records, medical examinations, authorizations, and documents relevant to said arbitration. This application is opposed.
The Court notes that pursuant to CPLR 304, a special proceeding may be commenced by the filing of the petition alone (see Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C403:2 [Note: online version]).
Notice of Petition
Petition
Affirmation
Exhibits A to D
Affirmation in Opposition
Affirmation in Reply
Exhibit A
BACKGROUND
On July 5, 2022, petitioner USAA filed a verified petition and supporting papers with the Kings County Clerk's office seeking, among other things, to permanently stay the arbitration demand of respondent Catherine Collins.
On July 26, 2022, the respondent electronically filed an affirmation in opposition to the instant petition.
On August 3, 2022, USAA electronically filed a notice of petition with the KCCO.
The petition alleges the following salient facts. On June 13, 2020, USAA received a demand to arbitrate a claim under the insurance policy issued to Catherine Collins. The policy is alleged to have been in effect from July 25, 2013, to January 25, 2013.
The claim stems from an August 19, 2013, motor vehicle accident involving a pedestrian in Staten Island, New York. The petition alleges that a 2011 Volvo truck with a New Jersey license plate, came into contact with James J. Collins after he alighted from his parked vehicle.
The petition further alleges that the adverse vehicle was insured by CastlePoint National Insurance Company and adjusted by Tower Group in 2013.
MOTION PAPERS
USAA's papers consist of a verified petition, an affirmation of counsel, and four annexed exhibits labeled A through D. Exhibit A is titled a "Request for UM Arbitration" dated June 1, 2022. Exhibit B includes forty-five pages and is described as the policy declarations and insurance policy of Catherine Collins. Exhibit C is an uncertified police report. Exhibit D includes a letter to the Law Office of Zaremba, Brownell, and Brown PLLC dated November 15, 2013, and court documents.
The respondent's opposition consists of an affirmation of the respondent's counsel.
The petitioner's reply papers consist of an affirmation of counsel and one annexed exhibit labeled 'A'. Exhibit A is a described as a stamped copy of the certified mail receipt and mailing envelope from the respondent's counsel.
LAW AND APPLICATION
USAA commenced the instant special proceeding pursuant to CPLR Article 75, seeking, among other things, to permanently stay an arbitration of a claim for Uninsured Motorist (UM) benefits by respondent Catherine Collins.
CPLR 402 governs the pleadings requirements for special proceedings (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C402:1 [Note: online version]). The petition in a special proceeding is analogous to the complaint in an action (id.). The procedure for special proceedings contemplates that the petition will be accompanied by affidavits demonstrating the evidentiary grounds for the requested relief (Alexander, Prac Commentaries, CPLR C402:1 citing, 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 (id.).
A 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 (Travelers Personal Ins. Co. v Hanophy-Ryan, 200 A.D.3d 695 [2d Dept 2021], quoting Matter of Government Empls. Ins. Co. v Tucci, 157 A.D.3d 679, 680, [2d Dept 2018]). "Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing" (Travelers Personal Ins. Co., 200 A.D.3d at 695 quoting Matter of Merchants Preferred Ins. Co. v Waldo, 125 A.D.3d 864, 865 [2d Dept 2015]).
USAA alleges that Catherine Collins is not a proper party for the requested arbitration because the respondent was not the subject of the accident. Furthermore, that the adverse vehicle in the accident was insured. In support of its application, USAA submits four exhibits: the demand for arbitration, a copy of an insurance policy, an uncertified police report, and a copy of a letter and other documents.
USAA's petition is verified by its counsel. The allegations of facts in the petition are based upon a review of a file maintained by the law firm. A pleading verified by an attorney pursuant to CPLR 3020(d)(3), and not by someone with personal knowledge of the facts, is insufficient to establish its merits (First Franklin Fin. Corp. v Alfau, 157 A.D.3d 863, 865 [2d Dept 2018], citing DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 A.D.3d 760, 762 [2d Dept 2015]). Accordingly, USAA's papers contain no sworn allegations of fact by anyone with personal knowledge of the facts asserted therein.
Catherine Collin's demand for arbitration does not provide evidentiary support for either a permanent or temporary stay of arbitration. An uncertified police accident report constitutes inadmissible hearsay evidence (Rosa v Gordils, 211 A.D.3d 1060, 1061 [2d Dept 2022], citing Yassin v Blackman, 188 A.D.3d 62, 65-67 [2d Dept 2020]). The police report, in the instant matter, is not certified and is therefore inadmissible.
Consequently, that branch of USAA's petition which seeks a permanent stay, or, in the alternative, a temporary stay of UM motorist arbitration is denied regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 N.Y.2d 851 [1985]).
CONCLUSION
United Services Automobile Association's petition for an order pursuant to CPLR §7503(c), permanently staying the arbitration between the petitioner and respondent Catherine G. Collins or in the alternative temporarily staying said arbitration, granting a framed issue hearing on the issue of the existence of Uninsured/Underinsured Motorist Coverage is denied.