NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
September 22, 2009
IN RE CONTINENTAL CASUALTY COMPANY, ETC., PETITIONER-APPELLANT,
TIBOR LECEI, RESPONDENT-RESPONDENT.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered June 4, 2009, which denied petitioner's motion to reject the Special Referee's report that at the time of the accident respondent was "occupying" his employer's vehicle within the meaning of the supplemental underinsured motorist provision of the employer's insurance policy, granted respondent's motion to confirm the report, and dismissed the petition to stay arbitration, unanimously affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Andrias, Catterson, Acosta, JJ.
The Special Referee's finding that respondent was "occupying" the truck within the meaning of the policy is substantiated by respondent's testimony that he was alighting from the truck when he was struck by a passing motorist. Contrary to petitioner's contention, the evidence supports the conclusion that respondent was "still vehicle-oriented" at the time he was injured (see Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 11 ). There is no basis to disturb the Special Referee's credibility findings regarding the hearing testimony and prior inconsistent statements of respondent's co-worker (see Kardanis v Velis, 90 AD2d 727, 727 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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