Lumbermens Mutual Casualty Co. v. Nespolini

Appellate Division of the Supreme Court of New York

Lumbermens Mutual Casualty Co. v. Nespolini

281 A.D.2d 365, 722 N.Y.S.2d 166, 2001 N.Y. App. Div. LEXIS 3185

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 29, 2001

StatusPublished

Cited by1 cases

This text of 281 A.D.2d 365 (Lumbermens Mutual Casualty Co. v. Nespolini) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lumbermens Mutual Casualty Co. v. Nespolini, 281 A.D.2d 365, 722 N.Y.S.2d 166, 2001 N.Y. App. Div. LEXIS 3185 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered January 18, 2000, which, to the extent appealed from as limited by the briefs, denied petitioner’s motion for a framed issue hearing on the basis that no issues of fact exist, unanimously reversed, on the law and the facts, without costs, and the motion granted to the extent of remanding this matter to the motion court to conduct a framed issue hearing as to whether respondent was involved in a hit-and-run accident.

It is well settled that, should the question be raised, the court, and not an arbitrator, must resolve the issue of whether there was actual contact with a hit-and-run vehicle (Matter of Nationwide Ins. Co. v McDonnell, 272 AD2d 547; Matter of Universal Underwriters Group [Zeitlin], 157 AD2d 544; Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365). Petitioner, as the party seeking to stay arbitration, has the burden of demonstrating the existence of sufficient evidentiary facts to establish a genuine preliminary issue (Matter of Empire Mut. Ins. Co. [Zelin], supra, at 366).

[366]*366In this matter, petitioner has identified a number of inconsistencies in respondent’s various descriptions of the accident which, when viewed together, are sufficient to raise an issue of fact as to exactly how the accident happened and whether or not another vehicle did, in fact, make contact with respondent’s motorcycle. Concur — Nardelli, J. P., Williams, Tom, Lerner and Rubin, JJ.

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—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered January 18, 2000, which, to the extent appealed from as limited by the briefs, denied petitioner’s motion for a framed issue hearing on the basis that no issues of fact exist, unanimously reversed, on the law and the facts, without costs, and the motion granted to the extent of remanding this matter to the motion court to conduct a framed issue hearing as to whether respondent was involved in a hit-and-run accident.

It is well settled that, should the question be raised, the court, and not an arbitrator, must resolve the issue of whether there was actual contact with a hit-and-run vehicle (Matter of Nationwide Ins. Co. v McDonnell, 272 AD2d 547; Matter of Universal Underwriters Group [Zeitlin], 157 AD2d 544; Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365). Petitioner, as the party seeking to stay arbitration, has the burden of demonstrating the existence of sufficient evidentiary facts to establish a genuine preliminary issue (Matter of Empire Mut. Ins. Co. [Zelin], supra, at 366).

[366]*366In this matter, petitioner has identified a number of inconsistencies in respondent’s various descriptions of the accident which, when viewed together, are sufficient to raise an issue of fact as to exactly how the accident happened and whether or not another vehicle did, in fact, make contact with respondent’s motorcycle. Concur — Nardelli, J. P., Williams, Tom, Lerner and Rubin, JJ.

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Bluebook (online)

281 A.D.2d 365, 722 N.Y.S.2d 166, 2001 N.Y. App. Div. LEXIS 3185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumbermens-mutual-casualty-co-v-nespolini-nyappdiv-2001.

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