Continental Insurance v. Josephson

280 A.D.2d 546, 720 N.Y.S.2d 392, 2001 N.Y. App. Div. LEXIS 1885

Opinion

—In a proceeding pursuant to CPLR 7503 to permanently stay arbitration of a claim for uninsured motorist benefits, Continental Insurance Company appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated April 12, 2000, which granted the petition only to the extent of granting a temporary stay of arbitration and directing a hearing to determine whether the vehicle at issue was uninsured.

Ordered that on the Court’s own motion, the appellant’s notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with costs, the petition is granted in its entirety, and the arbitration is permanently stayed.

The Supreme Court erred in not granting the petition in its entirety as the respondent failed to demonstrate that she acted with due diligence in ascertaining the insurance status of the other vehicle involved in the accident (see, Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Matter of Eagle Ins. Co. v Bernardine, 266 AD2d 543; Matter of Nationwide Ins. Co. v Montopoli, 262 AD2d 647; Matter of State Farm Mut. Auto. Ins. Co. v Adams, 259 AD2d 551). Ritter, J. P., Krausman, Florio and Feuerstein, JJ., concur.