State Farm Mutual Automobile Insurance v. Fernandez

Appellate Division of the Supreme Court of New York

State Farm Mutual Automobile Insurance v. Fernandez

23 A.D.3d 480, 805 N.Y.S.2d 599

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

DecidedNovember 14, 2005

StatusPublished

Cited by8 cases

This text of 23 A.D.3d 480 (State Farm Mutual Automobile Insurance v. Fernandez) 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

State Farm Mutual Automobile Insurance v. Fernandez, 23 A.D.3d 480, 805 N.Y.S.2d 599 (N.Y. Ct. App. 2005).

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Opinion

In a proceeding pursuant to CPLR article 75 to stay arbitra[481]*481tion of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated August 16, 2004, which, without a hearing, denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for joinder of the proposed additional respondents Hanover Insurance Company and Sharlisha D. Jackson, and the arbitration is temporarily stayed pending an evidentiary hearing on the issue of whether the offending vehicle was insured at the time of the accident, and a new determination on the petition.

Vehicle and Traffic Law § 388 (1) creates a presumption that a driver uses a vehicle with the owner’s express or implied permission (see Murdza v Zimmerman, 99 NY2d 375 [2003]) which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704, 705 [2005]; Murdza v Zimmerman, supra). Although evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use, here, the affidavit of the vehicle owner Sharlisha D. Jackson was insufficient to rebut the presumption (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, supra; Minaya v Horner, 279 AD2d 333 [2001]). In her affidavit, Jackson admitted that she left the car keys in the vehicle at the time of the theft, which raised a triable issue of fact whether the purported disclaimer of coverage by Hanover Insurance Company was proper under the circumstances (see Vehicle and Traffic Law § 1210 [a]; Matter of Merchants Ins. Group v Haskins, 11 AD3d 694 [2004]). Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.

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In a proceeding pursuant to CPLR article 75 to stay arbitra[481]*481tion of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated August 16, 2004, which, without a hearing, denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for joinder of the proposed additional respondents Hanover Insurance Company and Sharlisha D. Jackson, and the arbitration is temporarily stayed pending an evidentiary hearing on the issue of whether the offending vehicle was insured at the time of the accident, and a new determination on the petition.

Vehicle and Traffic Law § 388 (1) creates a presumption that a driver uses a vehicle with the owner’s express or implied permission (see Murdza v Zimmerman, 99 NY2d 375 [2003]) which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704, 705 [2005]; Murdza v Zimmerman, supra). Although evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use, here, the affidavit of the vehicle owner Sharlisha D. Jackson was insufficient to rebut the presumption (see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, supra; Minaya v Horner, 279 AD2d 333 [2001]). In her affidavit, Jackson admitted that she left the car keys in the vehicle at the time of the theft, which raised a triable issue of fact whether the purported disclaimer of coverage by Hanover Insurance Company was proper under the circumstances (see Vehicle and Traffic Law § 1210 [a]; Matter of Merchants Ins. Group v Haskins, 11 AD3d 694 [2004]). Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.

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Bluebook (online)

23 A.D.3d 480, 805 N.Y.S.2d 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-mutual-automobile-insurance-v-fernandez-nyappdiv-2005.

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