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In re Government Employees Insurance Co.

Supreme Court of New York, Second Department

December 24, 2019

In the Matter of Government Employees Insurance Company, petitioner-respondent,
v.
Felix Escoto, respondent, North Carolina Farm Bureau Insurance Group, et al., appellants. Index No. 515011/17

          Argued - May 23, 2019

         D61672 G/afa

          Mintzer Sarowitz Zeris Ledva Meyers, LLP, New York, NY (Peter A. Frucchione of counsel), for appellants.

          Gail S. Lauzon (Russo & Tambasco, Melville, NY [Susan J. Mitola and Andrew Weber], of counsel), for petitioner-respondent.

          LEONARD B. AUSTIN, J.P. BETSY BARROS FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the proposed additional respondents North Carolina Farm Bureau Insurance Group and Charles Roberts, Jr., appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated April 3, 2018. The order, insofar as appealed from, granted those branches of the petition which were for leave to join Charles Roberts, Jr., as an additional respondent to the proceeding and to temporarily stay the arbitration of the uninsured motorist claim pending a framed-issue hearing, and denied that branch of the motion of the proposed additional respondents North Carolina Farm Bureau Insurance Group and Charles Roberts, Jr., which was pursuant to CPLR 3211(a)(8) to dismiss the petition insofar as asserted against Charles Roberts, Jr., for lack of personal jurisdiction.

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         On December 28, 2016, Felix Escoto allegedly was injured in a motor vehicle accident when, while operating his vehicle, it was struck in the rear by another vehicle in Brooklyn. The other vehicle left the scene. However, Escoto took a photograph of a North Carolina-issued license plate which was on the vehicle purportedly involved in the accident. Escoto provided that license plate number to the police officer who responded to the scene of the accident. The responding police officer recorded the plate number provided by Escoto and information concerning the make and type of the vehicle related to that plate number in the police accident report.

         On the date of the accident, Escoto's vehicle was insured by a policy issued by the petitioner, Government Employees Insurance Company (hereinafter GEICO). The policy included a supplementary uninsured/underinsured motorists endorsement. Using the plate number listed in the police accident report, GEICO performed a plate search of the North Carolina Department of Motor Vehicles records and determined that the other vehicle, a 2014 Cadillac, was owned by the proposed additional respondent Charles Roberts, Jr., and insured by the proposed additional respondent North Carolina Farm Bureau Insurance Group (hereinafter Farm Bureau) on the date of the subject accident. Roberts denied any involvement in the accident. Thereafter, Farm Bureau denied Escoto's bodily injury claim which he had submitted to Farm Bureau against its policy issued to Roberts. Subsequently, Escoto demanded arbitration of his claim for uninsured motorist benefits from GEICO.

         GEICO commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of the uninsured motorist claim, or, in the alternative, to temporarily stay the arbitration pending a framed-issue hearing on the issue of whether the other vehicle involved in the subject accident was "uninsured" on the date of the accident. GEICO's petition also sought leave to join Roberts and Farm Bureau as additional respondents. In support of its petition, GEICO submitted, inter alia, a copy of the police accident report and the results of its license plate search.

         Roberts and Farm Bureau moved pursuant to CPLR 3211(a)(8) to dismiss the petition insofar as asserted against them. They maintained that New York did not have jurisdiction over them since Farm Bureau was a North Carolina company not authorized to do business in New York and Roberts was a North Carolina resident who was not involved in the happening of the subject accident.

         The Supreme Court granted those branches of the petition which were to join Roberts as an additional respondent and to temporarily stay the arbitration pending a framed-issue hearing on the issue of whether the vehicle owned by Roberts was involved in the subject accident and whether that vehicle was "uninsured" on that date. The court also denied that branch of the motion of Farm Bureau and Roberts which was to dismiss the petition insofar as asserted against Roberts for lack of personal jurisdiction. Farm Bureau and Roberts appeal.

         "The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay" (Matter of AutoOne Ins. Co. v Umanzor, 74 A.D.3d 1335, 1336; see Matter of Metropolitan Prop. & Cas. Ins. Co. v Singh, 98 A.D.3d 580, 581). "Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing" (Matter of Merchants Preferred Ins. Co. v Waldo, 125 A.D.3d 864, 865). Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine that issue in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination (see Matter of Allstate Ins. Co. v Aizin, 102 A.D.3d 679, 681).

         Here, the documents submitted by GEICO in support of the petition demonstrated the existence of sufficient evidentiary facts to establish a preliminary issue justifying a temporary stay (see Matter of Hereford Ins. Co. v McKoy, 160 A.D.3d 734, 736; Matter of Hertz Corp. v Holmes, 106 A.D.3d 1001, 1003; cf. Matter of Victoria Select Ins. Co. v Munar, 80 A.D.3d 707, 707-708). Through, inter alia, the police accident report and the results of the license plate search for the plate number provided by Escoto, GEICO made a prima facie showing that the other vehicle involved in the subject accident was Roberts's vehicle and that Roberts's vehicle ...


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