Fireman's Insurance Co. of Newark v. Sorto

Appellate Division of the Supreme Court of New York

Fireman's Insurance Co. of Newark v. Sorto

303 A.D.2d 502, 756 N.Y.S.2d 436, 2003 N.Y. App. Div. LEXIS 2329

Appellate Division of the Supreme Court of the State of New York·Decided March 10, 2003·Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay an uninsured motorist arbitration, the petitioner appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated June 3, 2002, which denied the petition and dismissed the proceeding.

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

The petitioner disclaimed coverage based on the respondent’s failure to provide a timely notice of claim. The petitioner’s attorney averred that the respondent first gave notice of an uninsured motorist claim by means of a letter in early April 2001, six months after the subject loss. In opposition to the petition, the respondent submitted a letter from his prior counsel dated two days after the subject motor vehicle accident, apprising the petitioner of the respondent’s intention to file a claim for uninsured motorist benefits. Counsel’s affirmation in opposition to [503] the petition, made without personal knowledge of whether the letter was in fact mailed, was not competent on this matter (see Stahl v Stralberg, 287 AD2d 613 [2001]). Accordingly, the Supreme Court erred in denying the petition. Feuerstein, J.P., Goldstein, H. Miller and Rivera, JJ., concur.

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—In a proceeding pursuant to CPLR article 75 to permanently stay an uninsured motorist arbitration, the petitioner appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated June 3, 2002, which denied the petition and dismissed the proceeding.

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

The petitioner disclaimed coverage based on the respondent’s failure to provide a timely notice of claim. The petitioner’s attorney averred that the respondent first gave notice of an uninsured motorist claim by means of a letter in early April 2001, six months after the subject loss. In opposition to the petition, the respondent submitted a letter from his prior counsel dated two days after the subject motor vehicle accident, apprising the petitioner of the respondent’s intention to file a claim for uninsured motorist benefits. Counsel’s affirmation in opposition to [503] the petition, made without personal knowledge of whether the letter was in fact mailed, was not competent on this matter (see Stahl v Stralberg, 287 AD2d 613 [2001]). Accordingly, the Supreme Court erred in denying the petition. Feuerstein, J.P., Goldstein, H. Miller and Rivera, JJ., concur.

Fireman's Insurance Co. of Newark v. Sorto, 303 A.D.2d 502, 756 N.Y.S.2d 436, 2003 N.Y. App. Div. LEXIS 2329 (N.Y. Ct. App. 2003).

Pincite

303 A.D.2d 502 (Fireman's Insurance Co. of Newark v. Sorto) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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