Legion Insurance v. Estevez

281 A.D.2d 420, 721 N.Y.S.2d 273, 2001 N.Y. App. Div. LEXIS 2115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 2001
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the appeal is from an order of the Supreme Court, Nassau County (Adams, J.), dated November 16, 1999, which granted the petition.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly granted the petition of Legion Insurance Company (hereinafter Legion) for a permanent stay of arbitration on the ground that the appellant failed, within 90 days of the accident, to file a statement under oath that he has a cause of action arising out of an accident with a “hit-and-run vehicle,” a condition precedent to coverage under the uninsured motorists endorsement of the insurance policy. Contrary to the appellant’s contention, the unsworn and undated application for no-fault benefits did not constitute such a statement and the failure to comply with the above requirement vitiated coverage (see, Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054; Matter of Interboro Mut. Indem. Ins. Co. v Napolitano, 232 AD2d 561; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636; Matter of Eveready Ins. Co. v Ruiz, 208 AD2d 923; State Farm Mut. Auto. Ins. Co. v Romero, 109 AD2d 786).

Moreover, contrary to the appellant’s contention, Legion timely disclaimed coverage upon first learning of the grounds for such disclaimer (see, Matter of Allcity Ins. Co. [Jimenez], supra; Matter of Interboro Mut. Indem. Ins. Co. v Napolitano, supra; Matter of State Farm Ins. Co. v Velasquez, supra). Ritter, J. P., Friedmann, H. Miller and Feuerstein, JJ., concur.