Nassau Insurance v. Davis

60 A.D.2d 882, 401 N.Y.S.2d 284, 1978 N.Y. App. Div. LEXIS 9925

Opinion

In a proceeding to stay arbitration, the appeal is from a judgment of the Supreme Court, Queens County, dated June 20, 1977, which, inter alia, denied the application. Judgment reversed, on the law, without costs or disbursements, and proceeding remitted to Special Term for a hearing and a new determination in accordance herewith. In opposing the petition for a stay of arbitration, the respondent submitted a Department of Motor Vehicles FS-8.7 form indicating that the driver at fault had not insured his car as of the date of the accident. As a general rule, the introduction of such a form is sufficient, in the absence of proof to the contrary, to establish that the offending vehicle was uninsured at the time of the accident (Zelanka v MVAIC, 32 AD2d 847). Here, however, petitioner has presented evidence that the offending car was insured by Government Employees Insurance Company (GEICO) when the accident occurred. In addition, petitioner submitted an affidavit from the wife of the since deceased driver to the effect that she had not received any cancellation form from GEICO. Finally, in the light of the recent decision in County-Wide Ins. Co. v Zanfardino (NYLJ, July 8, 1977, p 12, col 2), it is likely that even if GEICO had sent a cancellation notice, that such notice did not operate to terminate the policy coverage. Accordingly a serious question of fact exists as to which petitioner is entitled to a hearing. Martuscello, J. P., Rabin, Margett and O’Connor, JJ., concur.