Matter of Liberty Mut. Ins. Co. v Evangelista 2024 NY Slip Op 33323(U) September 19, 2024 Supreme Court, New York County Docket Number: Index No. 655994/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 655994/2023 In the Matter of MOTION DATE 07/12/2024 LIBERTY MUTUAL INSURANCE COMPANY, MOTION SEQ. NO. 001 Petitioner,
-v- DECISION + ORDER ON ADELSIO ULERIO EVANGELISTA, MOTION
Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 were read on this motion to/for STAY OF ARBITRATION .
This is a proceeding pursuant to CPLR 7503, pursuant to which the petitioner, Liberty
Mutual Insurance Company (Liberty), seeks a permanent stay of arbitration of a claim for
uninsured motorist (UM) benefits that had been demanded by the respondent, Adelsio Ulerio
Evangelista or, in the alternative, a framed-issue hearing to determine whether a hit-and-run
vehicle had struck Evangelista’s vehicle, thus triggering UM coverage. Evangelista opposes the
branch of the petition seeking a permanent stay of arbitration, but joins in Liberty’s request that
the court conduct a framed-issue hearing on the issue of whether there was vehicular contact
with a hit-and-run vehicle and, hence, coverage. The petition is granted to the extent that the
court directs a framed-issue hearing on the issue of whether an unidentified hit-and-run vehicle
had struck Evangelista’s vehicle and, thus, whether Liberty must provide UM coverage in
connection with the underlying motor vehicle accident. The petition is otherwise denied at this
juncture, pending the outcome of the framed-issue hearing.
Liberty had issued a policy of automobile liability insurance to Evangelista in New York
covering a Dodge Journey sports utility vehicle (SUV) that he owned. On February 20, 2023,
655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 1 of 5 Motion No. 001
1 of 5 [* 1] FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
while driving his SUV in the left lane of the SNW roadway on the western alignment of the New
Jersey Turnpike in Carlstadt, New Jersey, Evangelista’s vehicle struck the rear of a vehicle
owned by BB Myrtle Pharmacy Corp. (BB Myrtle) and operated by P.M. Kanaheraarachchi,
which, in turn, struck the rear end of a vehicle owned by Kimberly A. Portanova-Feibus and
operated by Benjamin D. Feibus. In the relevant police accident report, the New Jersey State
Trooper who took the statements of the three vehicle operators did not record a statement by
Evangelista that a fourth vehicle had struck his vehicle in the rear, causing his vehicle to strike
the rear of the BB Myrtle vehicle, and that this fourth vehicle had left the scene of the accident
without stopping. Nonetheless, Evangelista made claim against Liberty for UM benefits,
alleging both that this fourth vehicle had indeed struck his vehicle in the rear, thus precipitating
the subject accident, and that it had fled from the accident scene.
It is apparent from the description of the accident provided by Evangelista that neither
the operator of the vehicle that he struck, nor the operator of the third vehicle that had in turn
been struck by that vehicle, likely would be held liable for negligence in the happening of the
accident. That is because “a rear-end collision into a stopped automobile creates a prima facie
case of liability with respect to the operator of the moving vehicle, imposing a duty of care on its
operator, and . . . the operator is required to rebut the inference of negligence created by the
unexplained rear-end collision” (Rybka v Reyes, 2022 NJ Super Unpub LEXIS 2288, *3-4 [NJ
Super, Law Div, Bergen County, Aug. 26, 2022]), which Evangelista is unlikely to do here (see
Fargas v Gorham, 276 NJ Super 135, 139-140, 647 A2d 498 [NJ Super, Law Div, Burlington
County 1994] [driver of following vehicle in rear-end collision unable to defeat summary
judgment motion solely on unsupported contention that lead vehicle stopped suddenly). Hence,
the only other driver who might be held liable in tort for Evangelista’s injuries would be the driver
of the purported hit-and-run vehicle.
Insurance Law § 3420(f)(1) provides, in relevant part, that all automobile insurance
policies issued in New York provide UM coverage for 655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 2 of 5 Motion No. 001
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
“all sums, not exceeding a maximum amount or limit of twenty-five thousand dollars exclusive of interest and costs, on account of injury to . . . one person, in any one accident, . . . which the insured or his legal representative shall be entitled to recover as damages from an owner or operator of an . . . unidentified motor vehicle which leaves the scene of an accident.”
Where a UM insurer meets its initial burden of proving that there was no vehicle at fault in the
happening of the underlying accident that left the scene of the accident, the burden shifts to the
respondent to prove that the offending vehicle was, in fact, at fault in the happening of the
accident and that it did, in fact, leave the scene of the accident (see generally Matter of Allstate
Ins. Co. v Frederick, 266 AD2d 283, 284 [2d Dept 1999]). By submitting the police accident
report, Liberty demonstrated that there likely was no fourth, hit-and-run vehicle involved in the
accident. Here, however, inasmuch as Evangelista insisted that he was struck in the rear by a
hit-and-run vehicle, “it would be reasonable to hold a framed issue hearing,” as there are
sufficient facts in dispute to warrant one (Matter of Travelers Home & Mar. Ins. Co. v Barowitz,
208 AD3d 1074, 1075 [1st Dept 2022]), particularly since Liberty proposed such a hearing as
alternative relief in the first instance.
Accordingly, it is,
ORDERED that the petition is granted to the extent that the arbitration demanded by the
respondent is temporarily stayed, pending a framed-issue hearing on the issue of whether the
respondent’s vehicle had been struck in the rear by another vehicle that left the scene of the
subject accident, thus triggering uninsured motorist’s coverage under the insurance policy
issued to the respondent by the petitioner, and the petition is otherwise denied at this juncture;
and it is further,
ORDERED that a Judicial Hearing Officer (“JHO”) or Special Referee shall be
designated to hear and report to this Court on the following individual issues of fact, which are
hereby submitted to the JHO/Special Referee for such purpose: whether the respondent’s
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Matter of Liberty Mut. Ins. Co. v Evangelista 2024 NY Slip Op 33323(U) September 19, 2024 Supreme Court, New York County Docket Number: Index No. 655994/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 655994/2023 In the Matter of MOTION DATE 07/12/2024 LIBERTY MUTUAL INSURANCE COMPANY, MOTION SEQ. NO. 001 Petitioner,
-v- DECISION + ORDER ON ADELSIO ULERIO EVANGELISTA, MOTION
Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 were read on this motion to/for STAY OF ARBITRATION .
This is a proceeding pursuant to CPLR 7503, pursuant to which the petitioner, Liberty
Mutual Insurance Company (Liberty), seeks a permanent stay of arbitration of a claim for
uninsured motorist (UM) benefits that had been demanded by the respondent, Adelsio Ulerio
Evangelista or, in the alternative, a framed-issue hearing to determine whether a hit-and-run
vehicle had struck Evangelista’s vehicle, thus triggering UM coverage. Evangelista opposes the
branch of the petition seeking a permanent stay of arbitration, but joins in Liberty’s request that
the court conduct a framed-issue hearing on the issue of whether there was vehicular contact
with a hit-and-run vehicle and, hence, coverage. The petition is granted to the extent that the
court directs a framed-issue hearing on the issue of whether an unidentified hit-and-run vehicle
had struck Evangelista’s vehicle and, thus, whether Liberty must provide UM coverage in
connection with the underlying motor vehicle accident. The petition is otherwise denied at this
juncture, pending the outcome of the framed-issue hearing.
Liberty had issued a policy of automobile liability insurance to Evangelista in New York
covering a Dodge Journey sports utility vehicle (SUV) that he owned. On February 20, 2023,
655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 1 of 5 Motion No. 001
1 of 5 [* 1] FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
while driving his SUV in the left lane of the SNW roadway on the western alignment of the New
Jersey Turnpike in Carlstadt, New Jersey, Evangelista’s vehicle struck the rear of a vehicle
owned by BB Myrtle Pharmacy Corp. (BB Myrtle) and operated by P.M. Kanaheraarachchi,
which, in turn, struck the rear end of a vehicle owned by Kimberly A. Portanova-Feibus and
operated by Benjamin D. Feibus. In the relevant police accident report, the New Jersey State
Trooper who took the statements of the three vehicle operators did not record a statement by
Evangelista that a fourth vehicle had struck his vehicle in the rear, causing his vehicle to strike
the rear of the BB Myrtle vehicle, and that this fourth vehicle had left the scene of the accident
without stopping. Nonetheless, Evangelista made claim against Liberty for UM benefits,
alleging both that this fourth vehicle had indeed struck his vehicle in the rear, thus precipitating
the subject accident, and that it had fled from the accident scene.
It is apparent from the description of the accident provided by Evangelista that neither
the operator of the vehicle that he struck, nor the operator of the third vehicle that had in turn
been struck by that vehicle, likely would be held liable for negligence in the happening of the
accident. That is because “a rear-end collision into a stopped automobile creates a prima facie
case of liability with respect to the operator of the moving vehicle, imposing a duty of care on its
operator, and . . . the operator is required to rebut the inference of negligence created by the
unexplained rear-end collision” (Rybka v Reyes, 2022 NJ Super Unpub LEXIS 2288, *3-4 [NJ
Super, Law Div, Bergen County, Aug. 26, 2022]), which Evangelista is unlikely to do here (see
Fargas v Gorham, 276 NJ Super 135, 139-140, 647 A2d 498 [NJ Super, Law Div, Burlington
County 1994] [driver of following vehicle in rear-end collision unable to defeat summary
judgment motion solely on unsupported contention that lead vehicle stopped suddenly). Hence,
the only other driver who might be held liable in tort for Evangelista’s injuries would be the driver
of the purported hit-and-run vehicle.
Insurance Law § 3420(f)(1) provides, in relevant part, that all automobile insurance
policies issued in New York provide UM coverage for 655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 2 of 5 Motion No. 001
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
“all sums, not exceeding a maximum amount or limit of twenty-five thousand dollars exclusive of interest and costs, on account of injury to . . . one person, in any one accident, . . . which the insured or his legal representative shall be entitled to recover as damages from an owner or operator of an . . . unidentified motor vehicle which leaves the scene of an accident.”
Where a UM insurer meets its initial burden of proving that there was no vehicle at fault in the
happening of the underlying accident that left the scene of the accident, the burden shifts to the
respondent to prove that the offending vehicle was, in fact, at fault in the happening of the
accident and that it did, in fact, leave the scene of the accident (see generally Matter of Allstate
Ins. Co. v Frederick, 266 AD2d 283, 284 [2d Dept 1999]). By submitting the police accident
report, Liberty demonstrated that there likely was no fourth, hit-and-run vehicle involved in the
accident. Here, however, inasmuch as Evangelista insisted that he was struck in the rear by a
hit-and-run vehicle, “it would be reasonable to hold a framed issue hearing,” as there are
sufficient facts in dispute to warrant one (Matter of Travelers Home & Mar. Ins. Co. v Barowitz,
208 AD3d 1074, 1075 [1st Dept 2022]), particularly since Liberty proposed such a hearing as
alternative relief in the first instance.
Accordingly, it is,
ORDERED that the petition is granted to the extent that the arbitration demanded by the
respondent is temporarily stayed, pending a framed-issue hearing on the issue of whether the
respondent’s vehicle had been struck in the rear by another vehicle that left the scene of the
subject accident, thus triggering uninsured motorist’s coverage under the insurance policy
issued to the respondent by the petitioner, and the petition is otherwise denied at this juncture;
and it is further,
ORDERED that a Judicial Hearing Officer (“JHO”) or Special Referee shall be
designated to hear and report to this Court on the following individual issues of fact, which are
hereby submitted to the JHO/Special Referee for such purpose: whether the respondent’s
vehicle had been struck in the rear by another vehicle that left the scene of the subject accident,
655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 3 of 5 Motion No. 001
3 of 5 [* 3] FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
thus triggering uninsured motorist’s coverage under the insurance policy issued to the
respondent by the petitioner; and it is further,
ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119M,
646-386-3028 or spref@nycourts.gov) for placement at the earliest possible date upon which
the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of
that Part (which are posted on the website of this court at www.nycourts.gov/supctmanh at the
“References” link under “Courthouse Procedures”), shall assign this matter to an available
JHO/Special Referee to hear and report as specified above; and it is further,
ORDERED that counsel shall immediately consult one another and counsel for petitioner
shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax
(212-401-9186) or email, an Information Sheet (which can be accessed at the “References” link
on the court’s website) containing all the information called for therein and that, as soon as
practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date
fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is
further,
ORDERED that the parties shall appear for the reference hearing, including with all
witnesses and evidence they seek to present, and shall be ready to proceed, on the date first
fixed by the Special Referee Clerk subject only to any adjournment that may be authorized by
the Special Referees Part in accordance with the Rules of that Part; and it is further,
ORDERED that the hearing will be conducted in the same manner as a trial before a
Justice without a jury (CPLR 4320[a]) (the proceeding will be recorded by a court reporter, the
rules of evidence apply, etc.) and, except as otherwise directed by the assigned JHO/Special
Referee for good cause shown, the trial of the issues specified above shall proceed from day to
day until completion; and it is further,
655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 4 of 5 Motion No. 001
4 of 5 [* 4] FILED: NEW YORK COUNTY CLERK 09/19/2024 04:21 PM INDEX NO. 655994/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 09/19/2024
ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special
Referee shall be made within the time and in the manner specified in CPLR 4403 and Section
202.44 of the Uniform Rules for the Trial Courts.
This constitutes the Decision and Order of the court.
9/19/2024 $SIG$ DATE JOHN J. KELLEY, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
655994/2023 LIBERTY MUTUAL INSURANCE COMPANY vs. ULERIO EVANGELISTA, ADELSIO Page 5 of 5 Motion No. 001
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