Allstate Insurance v. Kopito

Appellate Division of the Supreme Court of New York

Allstate Insurance v. Kopito

201 A.D.2d 559, 607 N.Y.S.2d 713, 1994 N.Y. App. Div. LEXIS 1202

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 1994

StatusPublished

This text of 201 A.D.2d 559 (Allstate Insurance v. Kopito) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allstate Insurance v. Kopito, 201 A.D.2d 559, 607 N.Y.S.2d 713, 1994 N.Y. App. Div. LEXIS 1202 (N.Y. Ct. App. 1994).

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Opinion

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Nassau County (Christ, J.), entered January 9, 1992, which denied the application and directed the parties to proceed to arbitration.

[560]*560Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of whether there was any "physical contact” between the respondent insured’s vehicle and the alleged hit-and-run vehicle.

A review of the entire record reveals conflicting evidence as to whether there was physical contact between the respondent’s vehicle and the alleged hit-and-run vehicle. Since two conflicting accounts were presented, one within and one without the coverage (see, Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365, 366) of the policy issued by the petitioner, a factual issue was raised, which requires a trial (see, Matter of Midwest Mut. Ins. Co. [Roberson], 64 AD2d 985; Matter of Westchester Fire Ins. Co. v Bergenn, 161 AD2d 768). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.

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In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Nassau County (Christ, J.), entered January 9, 1992, which denied the application and directed the parties to proceed to arbitration.

[560]*560Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of whether there was any "physical contact” between the respondent insured’s vehicle and the alleged hit-and-run vehicle.

A review of the entire record reveals conflicting evidence as to whether there was physical contact between the respondent’s vehicle and the alleged hit-and-run vehicle. Since two conflicting accounts were presented, one within and one without the coverage (see, Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365, 366) of the policy issued by the petitioner, a factual issue was raised, which requires a trial (see, Matter of Midwest Mut. Ins. Co. [Roberson], 64 AD2d 985; Matter of Westchester Fire Ins. Co. v Bergenn, 161 AD2d 768). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.

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Bluebook (online)

201 A.D.2d 559, 607 N.Y.S.2d 713, 1994 N.Y. App. Div. LEXIS 1202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-insurance-v-kopito-nyappdiv-1994.

Opinion

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