Travelers Insurance v. Bynum

50 A.D.3d 813, 856 N.Y.S.2d 174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2008
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Orange County (McGuirk, J.), dated August 23, 2006, which granted the petition and permanently stayed the arbitration.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith.

Contrary to the Supreme Court’s conclusion, the vehicle in which the appellant’s decedent was killed was an uninsured motor vehicle (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639 [1991]; Matter of Liberty Mut. Ins. Co. v Saravia, 271 AD2d 534 [2000]).

Furthermore, under the circumstances presented, we conclude that the Supreme Court should have conducted a hearing to determine whether the appellant’s decedent was an “insured” within the meaning of the subject policy (cf. Matter of Liberty Mut. Ins. Co. v Saravia, 271 AD2d 534 [2000]; Matter of Graphic Arts Mut. Ins. Co. [Leno], 214 AD2d 976 [1995]). Accordingly, we remit the matter for such a hearing and thereafter, for a new determination of the petition to permanently stay arbitration of the uninsured motorist claim. Spolzino, J.P., Miller, Covello and Balkin, JJ., concur.