In the Matter of GuideOne Specialty Mutual Insurance Company, appellant,
Walter Sierra Cruz, respondent. Index No. 603838/15
L'Abbate, Balkan, Colavita & Contini, LLP, Garden
City, NY (Marie Ann Hoenings and L. Mackenzie Dowtin of
counsel), for appellant.
& Acosta, LLP, Huntington Station, NY (June Redeker of
counsel), for respondent.
C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR
D. LASALLE, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 75 to permanently stay
arbitration, the petitioner appeals from an order of the
Supreme Court, Suffolk County (Pitts, J.), dated August 27,
2015, which denied the petition and dismissed the proceeding.
that the order is reversed, on the law, with costs, and the
petition to permanently stay arbitration is granted.
respondent William Sierra Cruz was involved in a car accident
in which his vehicle was hit in the rear by a vehicle driven
by nonparty Brendon Knapp. The vehicle Cruz was driving was
insured by the petitioner, GuideOne Specialty Mutual
Insurance Company (hereinafter GuideOne), and Knapp's
vehicle was insured by Allstate Insurance Company
(hereinafter Allstate). On May 23, 2013, about three weeks
after the accident, Cruz's attorney wrote a letter to
GuideOne advising that, since she had not yet verified
Knapp's coverage, there was a possibility that a claim
would be made against either the uninsured or underinsured
endorsement of the subject policy. Cruz obtained information
regarding the limits of Knapp's insurance coverage on
June 12, 2013. On March 18, 2015, Cruz served GuideOne with a
notice of intent to arbitrate an underinsured motorist claim.
commenced this proceeding pursuant to CPLR article 75 to
permanently stay the arbitration on the ground, inter alia,
that Cruz failed to comply with the condition precedent to
coverage of giving notice as soon as reasonably practicable
of his underinsured motorist claim. Cruz's only argument
in opposition to the petition was that his notice was timely.
The Supreme Court denied the petition.
context of supplementary underinsured motorist (hereinafter
SUM) claims, "it is the claimant's burden to prove
timeliness of notice, which is measured by the date the
claimant knew or should have known that the tortfeasor was
underinsured" (Matter of Progressive Northeastern
Ins. Co. v McBride, 65 A.D.3d 632, 633; see Matter
of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93
N.Y.2d 487, 495; Gillard v Progressive, 96 A.D.3d
718). "Timeliness of notice is an elastic concept, the
resolution of which is highly dependent on the particular
circumstances" (Matter of Progressive Northeastern
Ins. Co. v McBride, 65 A.D.3d at 633; see Matter of
Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93
N.Y.2d at 494; Gillard v Progressive, 96 A.D.3d at
719). "In determining whether notice was timely, factors
to consider include, inter alia, whether the claimant has
offered a reasonable excuse for any delay, such as latency of
his/her injuries, and evidence of the claimant's due
diligence in attempting to establish the insurance status of
the other vehicles involved in the accident" (Matter
of Progressive Northeastern Ins. Co. v McBride, 65
A.D.3d at 633; see Matter of Gillard v Progressive,
96 A.D.3d at 719).
contrary to the Supreme Court's determination and
Cruz's contention, the letter dated May 23, 2013, did not
serve as effective notice of a SUM claim. That letter
expressly admitted that Cruz's attorney had not been able
"to verify the insurance coverage for the other vehicle
involved in the accident" and merely recited that, as a
result, a claim "may be made" for SUM benefits.
Indeed, the attorney indicated that the claim could be for
either uninsured motorist benefits or underinsured motorist
benefits. Under these circumstances, any claim for
underinsured motorist benefits was premature at that time,
since Cruz had no knowledge that the offending vehicle was
underinsured (see Matter of State Farm Mut. Auto. Ins.
Co. v Tubis, 38 A.D.3d 670; Matter of State Farm
Mut. Auto. Ins. Co. v Linero, 13 A.D.3d 546, 547).
the first effective notice provided by Cruz was sent on March
18, 2015. GuideOne correctly contends that this notice was
untimely as a matter of law. The accident occurred on May 2,
2013, and Cruz learned the coverage information from Allstate
on June 12, 2013. Cruz, who bears the burden, has not claimed
that any of his injuries were latent or offered any other
excuse for the delay in notifying GuideOne of his SUM claim.
In fact, Cruz did not make any effort to establish the
reasonableness of the delay but, rather, relied entirely upon
the letter dated May 23, 2013. Under these circumstances,
Cruz did not meet his burden of demonstrating the timeliness
of his claim for SUM benefits (see Matter of Liberty Mut.
Ins. Co. v Gallagher, 68 A.D.3d 772).
there are no further arguments advanced by Cruz in opposition
to the petition, the petition to permanently stay arbitration
should have been granted.
light of our determination, we need not reach ...