Avis Rent-A-Car System, Inc. v. Mitchell

164 Misc. 2d 899, 626 N.Y.S.2d 401, 1995 N.Y. Misc. LEXIS 157
CourtNew York Supreme Court
DecidedMarch 20, 1995
StatusPublished
Cited by1 cases

This text of 164 Misc. 2d 899 (Avis Rent-A-Car System, Inc. v. Mitchell) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avis Rent-A-Car System, Inc. v. Mitchell, 164 Misc. 2d 899, 626 N.Y.S.2d 401, 1995 N.Y. Misc. LEXIS 157 (N.Y. Super. Ct. 1995).

Opinion

OPINION OF THE COURT

Ralph Yachnin, J.

This application, made by notice of petition, undated but originally returnable by its terms on January 9, 1995, for an order, pursuant to CPLR 7503 (c), staying uninsured motorist arbitration demanded by respondent, is disposed of as follows: The first issue revolves around the timeliness of the present application. Respondent maintains that this special proceeding was not commenced within the 20 days provided for by statute. CPLR 7503 (c) provides, inter alia, that "[a]n application to stay arbitration must be made by the party served [with a demand for arbitration or a notice of intention to arbitrate] within twenty days after service upon him of the notice or demand, or he shall be so precluded.”

The respondent’s demand for arbitration (demand), dated November 8, 1994, was served by certified mail, return receipt requested, on November 10, 1994. This is evidenced by the postmark on the envelope in which it was sent1 and by the receipt for certified mail.2 The demand was sent to petitioner at 55 Sunrise Highway, Lynbrook, New York, and there is no [901]*901denial that the same was received by Avis Rent-A-Car System, Inc. (Avis) at that location.

Petitioner’s present application was commenced on December 9, 1994, more than 20 days after service of the demand on November 10, 1994.3

Petitioner’s application was not timely made, unless, as petitioner suggests, the initial service was not proper. Petitioner maintains that respondent improperly mailed the demand to petitioner’s rental office, rather than to petitioner’s claims department or its corporate insurance department in Garden City, New York, or to the claim handler, Bill McDermott, in Fort Lauderdale, Florida. In a conference among counsel and the court’s law secretary, Robert S. Caine, Esq., held on March 13, 1995, counsel agreed that the insurance policy does not contain a provision indicating where service of the demand should have been made. The papers submitted reflect that the rental agreement between petitioner and respondent was entered into at the address to which the demand was mailed and at which the subject vehicle was picked up and to be dropped off.

Petitioner maintains that the 20-day period provided for by the statute for the making of an application to stay arbitration should commence running on the date on which the demand was received by petitioner’s claims department, not by its rental office. Indeed, petitioner points out, the demand itself, albeit in tiny printing, states: "(Send the original to the party upon whom the demand is made. When filed by an insured, the original shall be directed to the claim office of the insurer under whose policy arbitration is sought, either the office where the claim has been discussed or the office closest to the residence of the insured.)”4 That somewhat confusing language, however, is part of the form but not provided for in the statute, the policy or the leasing agreement. Petitioner maintains that in the Nassau County telephone book there is a "separate listing for Avis World Headquarters (including a number for insurance) at 900 Old Country Road, Garden City, New York”; however, there is no allegation or showing that included in the directory is a telephone number for an Avis claims department. Moreover, one in respondent’s position should not be bound by a listing in a telephone book.

[902]*902More to the point, the burden of providing for the place to send claims is upon the petitioner. Petitioner, a self-insurer, prepared the policy, and petitioner prepared the agreement. Not having provided to the contrary, petitioner can hardly complain that respondent served the demand at a reasonable location — the place where she rented the vehicle, signed the contract, picked up the vehicle, and to which she was to return the vehicle. After all, the rental agreement is replete with conditions imposed by petitioner, and it would have been easy to provide that all claims against petitioner were to be made to a specific place. This was not done.

Petitioner claims that there is "no possible way that Avis could have notice of this demand for arbitration within the twenty (20) day period, if it was forwarded to the Avis Lynbrook rental location.”5 This is plainly not so. Documents are sent overnight all over this country. Documents are delivered same day service throughout the metropolitan area. Documents are also faxed between offices.

Petitioner cites Matter of Metropolitan Prop. & Liab. Ins. Co. v Boisette (105 AD2d 785 [2d Dept 1984]) in support of its claim that the demand was not mailed to the right place; however, such case is not on point. There the notice of intention to arbitrate was mailed addressed to the wrong company name and sent to still another company’s office. When received, it was finally redirected to the right company, too late to make a timely application for a stay. Therefore, the court held that the petitioner insurance company was not barred from bringing a petition to stay arbitration.

Petitioner has also cited a 1970 case, Matter of Empire Mut. Ins. Co. v Levy (35 AD2d 916 [1st Dept]), in which the respondent’s attorney had been communicating with the insurer’s New York office and was aware that the matter was being handled there. Under the law when the Empire case was decided, a petitioner had only 10 days, not 20, within which to move to stay arbitration. Moreover, communication among offices was not as easy as it is today. The clear implication of that case is that the court was saying that the respondent’s attorney intentionally sent the notice to an outlying office of the carrier in order to bar the insurer from making the very application which it ultimately made. This, the court held, was improper.

The circumstances in the present action are not the same as [903]*903in Empire (supra). There was no reason here for respondent’s counsel to suspect that the demand should be sent to a Florida claims person employed by a different company, "SCS & Associates, 3215 Northwest 10th Terrace, Fort Lauderdale, Florida”.6

In view of the foregoing, this court holds that petitioner’s application is not timely.

Petitioner also maintains that there is no contract providing for arbitration of respondent’s claim.

Petitioner is a self-insurer licensed as such in New York State. The subject vehicle was rented to respondent in New York State and thereupon dHven to the State of Florida, where an accident involving the vehicle took place. Respondent claims to have been injured as a result of the accident. Respondent maintains that the other vehicle vas "unidentified and allegedly a stolen vehicle”.7 There seems to be no dispute that petitioner issued a motor vehicle liability insurance policy.

The uninsured motorist endorsement to the subject policy provides: "Territory: This endorsement applies only to accidents which occur within the State of New York.” Therefore, petitioner postures, since the accident occurred outside New York, petitioner has no liability.

Petitioner also cites Matter of American Tr. Ins. Co. v Abdelghany

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Bluebook (online)
164 Misc. 2d 899, 626 N.Y.S.2d 401, 1995 N.Y. Misc. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avis-rent-a-car-system-inc-v-mitchell-nysupct-1995.