In re Ameriprise Auto & Home Insurance Company, Petitioner-Respondent,
Li Cao, Respondent-Appellant.
Altman Law Firm, PLLC, New York (Michael T. Altman of
counsel), for appellant.
DeCicco, Gibbons & McNamara, P.C., New York (William A.
Fitzgerald of counsel), for respondent.
Sweeny, J.P., Andrias, Manzanet-Daniels, Gische, Webber, JJ.
and judgment (one paper), Supreme Court, New York County
(Carol R. Edmead, J.), entered on or about December 3, 2015,
after a framed issue hearing, denying respondent's motion
for, among other things, an order directing the parties to
proceed to arbitration of respondent's claim for
supplemental underinsured motorist (SUM) benefits, and
granting the petition to permanently stay the SUM
arbitration, unanimously reversed, on the facts, without
costs, the judgment vacated, and the parties directed to
proceed to arbitration.
Li Cao alleges that, on February 7, 2012, she was knocked
down by a bicyclist as she was crossing Madison Avenue at
East 43rd Street in Manhattan, and then struck again by a
vehicle owned by Avis-Budget Group/PV Holding Corp. and
operated by Valencourt Dixon. After settling her claims
against Avis and Dixon, Cao sought SUM benefits under her own
policy with Ameriprise Auto & Home Insurance Company, and
demanded arbitration. The Ameriprise policy provides SUM
benefits, in relevant part, when the insured suffers bodily
injury as a passenger in a vehicle or "as a pedestrian
as a result of having been struck by an uninsured... or an
underinsured motor vehicle."
commenced a petition seeking a permanent stay of the SUM
arbitration requested by Cao, arguing that the policy did not
apply because the vehicle driven by Dixon did not come into
"contact" with respondent within the meaning of the
coverage. Supreme Court (Milton A. Tingling, J.) directed a
framed issue hearing on the issue.
court (Carol R. Edmead, J.) found that respondent had not
suffered injuries as a pedestrian struck by the motor vehicle
operated by Dixon, and permanently stayed the underinsured
motorist's arbitration. The court found respondent to be
"incredible" based on testimony that her English
was not "so good" in responding to a question on an
irrelevant issue. Although the court found a nonparty witness
who appeared on behalf of petitioner to be "very
credible, " the court discounted his testimony that
respondent was a pedestrian crossing the intersection.
Instead, the court credited the irreconcilable testimony of
Dixon, whom the court found "forthcoming, if to some
degree inconsistent, " that respondent was not a
pedestrian but a rider on a delivery bicycle who hit his
vehicle's right fender. We now reverse.
hearing court's determination that there was no direct
contact between respondent and Dixon's car was not
supported by a fair interpretation of the evidence. The
nonparty witness, whom the hearing court found to be
"very credible, " testified that respondent
pedestrian was struck by a food delivery bicyclist while
crossing Madison Avenue from west to east at Forty-third
testimony of respondent was consistent with that of the
nonparty witness in all material respects . She
explained that the incident occurred while she was walking
from her office in midtown to Grand Central station to catch
a train home to Connecticut. Respondent testified that while
on Forty-third Street crossing Madison she was knocked to the
ground by a bicyclist. Seconds later, she was struck by the
driver's approaching vehicle and lost consciousness. When
she awoke, she was en route to the hospital in an ambulance.
driver testified that he observed a cyclist on a delivery
bike traveling between lanes to his right. The bicyclist
"fell, " and her basket hit the front bumper of his
vehicle. He maintained that at no time had the vehicle come
into contact with the bicyclist, as opposed to the bicycle.
He further maintained that the vehicle had not come into
contact with any pedestrian; indeed, he testified that no
pedestrians were crossing the street. After the accident, the
driver exited the vehicle and observed an Asian woman lying
in the roadway. He believed the woman to be the cyclist who
had struck the vehicle.
Dixon maintained that there was no contact between his bumper
and the cyclist, he also testified that after he came to a
stop, a guy came up to him and said, "I saw you. You ran
her over." Further, on cross, Dixon acknowledged that
once the woman tipped over, she went below the level of the
car and that he lost sight of her for two seconds. He heard
the contact with his bumper but was not able to see it. He
was not sure what the woman's head came in contact with.
driver's version of events - that respondent was the
bicyclist he had "glanced" at in his mirror prior
to the accident - defies logic and was contradicted by his
admissions at the scene. The driver's version of events
had respondent - a professional with a masters degree who
worked at Morgan Stanley - riding a delivery bicycle with a
large basket. At the scene, the driver admitted that the
accident occurred as respondent and the nonparty witness
claimed, reporting that "[a] pedestrian was hit by a
bicyclist and was knocked down, " and he "was too
close to [the] pedestrian to stop." Dixon's
explanation that he erroneously used the word pedestrian when
he meant to say bicyclist is suspect to say the least.
the differing versions of events, the hearing court should
have accepted the "very credible" testimony of the
disinterested nonparty witness, which was consistent in all
material respects with that of respondent pedestrian, rather
than the irreconcilable testimony of a party found to be
there was no basis for finding respondent to be
"incredible." Respondent hypothesized that her
failure to understand counsel's allegation of an
inconsistency between her deposition and hearing testimony
concerning whether or not the light was red when she began
crossing the street was attributable to the fact that English
was not her first language. She did not claim to have trouble
understanding English, and confirmed that she had no trouble
understanding counsel's questions at the hearing or at
the deposition. Her inability to perceive a contradiction
that did not exist and her attempt to find an ...