UNINSURED MOTORIST CLAIM FOR ARBITRATION AFTER HIT-AND-RUN CAR ACCIDENT FAILS FOR LACK OF "CONTACT"

Case: In the Matter of GEICO v. Juan R. Albino

Court: Supreme Court, Appellate Division, Second Department, New York

Date: January 24, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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RELATED POSTS:

UNINSURED MOTORIST ACCIDENT CLAIM FAILS WHERE CONTACT WITH A CARDBOARD BOX BECAUSE IT'S NOT PART OF A VEHICLE(Posted by Queens accident lawyer Gary E. Rosenberg on Nov 24, 2011)

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DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Juan R. Albino appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated May 12, 2011, which, after a framed‑issue hearing, granted the amended petition.

ORDERED that the judgment is affirmed, with costs.

The appellant sought uninsured motorist benefits under a policy of insurance issued by the petitioner for physical injuries he alleged were sustained in a hit‑and‑run accident. The petitioner commenced this proceeding to permanently stay the arbitration.

Contrary to the appellant's contention, the Supreme Court providently exercised its discretion in, in effect, granting the petitioner leave to amend the petition to include, inter alia, a claim that no hit‑and‑run accident had occurred. While CPLR 7503(c) provides that a party served with a demand for arbitration must seek a stay within 20 days thereafter or be precluded from doing so, it does not prohibit amendment of a timely petition (see Matter of Allcity Ins. Co. Russo], 199 A.D.2d 88). Here, the petitioner sought a stay of arbitration within 20 days of being served with a demand for arbitration, and the proposed amendment did not result in any prejudice or surprise to the appellant (see CPLR 3025[b]; Matter of Allcity Ins. Co. [Russo ], 199 A.D.2d at 88).

Where, as here, a case is determined after a hearing held before a justice, this Court's power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499; Matter of Allstate Ins. Co. v. Tae Hong Ji, 81 AD3d 940). We decline to disturb the Supreme Court's determination, made after a framed‑issue hearing, that there was no physical contact between the appellant's vehicle and an alleged hit‑and‑run vehicle (see Matter of Allstate Ins. Co. v Tae Hong Ji, 81 AD3d at 940; Matter of Government Employees Ins. Co. v Steinmetz, 51 AD3d 1022).

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The petitioner's remaining contention is without merit.

Accordingly, the Supreme Court correctly granted the amended petition to permanently stay arbitration.

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