Eagle Insurance v. Viera

236 A.D.2d 612, 654 N.Y.S.2d 678, 1997 N.Y. App. Div. LEXIS 1587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1997
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Luciano Viera and David Viera appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated July 31, 1996, as granted the petition.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the petition is denied, and the petitioner and its insureds Luciano Viera and David Viera are directed to proceed to arbitration.

The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue that would justify the stay (see, Matter of Prudential Prop. & Cas. Ins. Co. v Campbell, 227 AD2d 628; Matter of State-Wide Ins. Co. v Morales, 204 AD2d 336). The petitioner failed to submit any documentary evidence to support its claim that the oifending vehicle was insured on the date of the accident and thus failed to meet its burden. Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.