Grogan & Souto, P.C. (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant.
Stephen D. Donohue, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac], of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 10, 2012, which denied the petition.
ORDERED that the order is reversed, on the law, with costs, and the petition is granted.
On October 16, 2011, Deborah Reyes was walking in front of a Sunoco Mart, located in Poughkeepsie, while carrying two bags. As she passed in front of a vehicle parked just outside the Sunoco Mart, in an area marked "No Parking, " a rottweiler dog extended its head from inside the vehicle and bit her right breast. Reyes commenced an action against the vehicle's owner, Michael Kazimer, which GEICO, the insurer of Kazimer's vehicle, later settled for $25, 000, the limits of the policy. Reyes then sought to recover under the supplementary uninsured/underinsured motorists endorsement contained in her car insurance policy with the petitioner, Allstate Insurance Company (hereinafter Allstate). Allstate denied coverage, concluding that the incident did not arise "out of the ownership, maintenance, or use of an underinsured vehicle." Reyes sought to arbitrate the matter, and Allstate thereafter commenced this proceeding to permanently stay arbitration. The Supreme Court denied the petition, concluding that the incident arose "out of the ownership, maintenance, or use of an underinsured vehicle."
A court may stay arbitration where "the particular claim sought to be arbitrated is outside [the] scope" of the agreement to arbitrate (see Matter of County of Rockland [ Primiano Constr. Co. ], 51 N.Y.2d 1, 7). Underinsured endorsements, such as the one at issue in this case, provide coverage only when the injuries are the result of an accident "arising out of such [underinsured's] motor vehicle's ownership, maintenance or use" (11 NYCRR 60-2.3[e]; see Matter of Liberty Mut. Fire Ins. Co. [ Malatino ], 75 A.D.3d 967, 968). Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines (see Rowell v Utica Mut. Ins. Co., 77 N.Y.2d 636, 638). To satisfy the requirement that it arose out of the "ownership, maintenance or use of" a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury (see Zaccari v Progressive Northwestern Ins. Co., 35 A.D.3d 597, 599; Eagle Ins. Co. v Butts, 269 A.D.2d 558, 559-560; U.S. Oil Ref. & Mktg. Corp. v Aetna Cas. & Sur. Co., 181 A.D.2d 768). "[T]he vehicle itself need not be the proximate cause of the injury, " but "negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury" (Zaccari v Progressive Northwestern Ins. Co., 35 A.D.3d at 599; see Empire Ins. Co. v Schliessman, 306 A.D.2d 512, 513). "To be a cause of the injury, the use of the motor vehicle must be closely related to the injury" (Zaccari v Progressive Northwestern Ins. Co., 35 A.D.3d at 599).
Here, as a matter of law, Reyes's injuries did not result from the inherent nature of Kazimer's vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Kazimer's dog, and the vehicle merely contributed to the condition which produced the injury, namely, the location or situs for the injury. Allstate established that a causal relationship between the car and the incident was lacking, and Reyes failed to rebut that showing (see Empire Ins. Co. v Schliessman, 306 A.D.2d at 513; Eagle Ins. Co. v Butts, 269 A.D.2d at 559; see also Keppler v American Family Mut. Ins. Co., 588 N.W.2d 105; Sanchez v State Farm Mut. Auto. Ins. Co., 878 P.2d 31; Alvarino by Alvarino v Allstate Ins. Co., 370