New York Central Mutual Fire Insurance v. Douglas

287 A.D.2d 720, 732 N.Y.S.2d 58, 2001 N.Y. App. Div. LEXIS 10036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2001
• Status: Published

Opinion

—In a proceeding, inter alia, to stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated January 29, 2001, which denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and arbitration is stayed pending an evidentiary hearing in accordance herewith.

The Supreme Court erred in denying the petitioner’s application, inter alia, for a temporary stay of arbitration. The petitioner demonstrated that there was an issue of fact as to whether the respondent used reasonable efforts to ascertain the identity of the owner and/or driver of the alleged uninsured vehicle (see, Matter of Tri-State Consumer Ins. Co. v Dabush, 264 AD2d 848; Matter of American Sec. Ins. Co. v Calarco, 85 AD2d 693). Accordingly, the matter must be remitted to the Supreme Court, Richmond County, for an evidentiary hearing on that issue. Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.