Opinion
2013-12-4
In the Matter of FARMERS INSURANCE/TRUCK INSURANCE EXCHANGE, appellant, v. Rosa TERZULLI, respondent; National Union Fire Insurance Company of Pittsburgh, et al., additional respondents.
John C. Buratti, New York, N.Y. (Julie M. Sherwood of counsel), for appellant. Alexander Bespechny, Brooklyn, N.Y. (Louis Badolato of counsel), for respondent.
John C. Buratti, New York, N.Y. (Julie M. Sherwood of counsel), for appellant. Alexander Bespechny, Brooklyn, N.Y. (Louis Badolato of counsel), for respondent.
Cullen and Dykman LLP, New York, N.Y. (Ian T. Williamson of counsel), for additional respondents.
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Archer, Ct. Atty. Ref.), dated May 7, 2012, which, after a framed-issue hearing, in effect, denied the petition.
ORDERED that the order is affirmed, with one bill of costs.
The petitioner commenced the instant proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits on the ground that the alleged offending vehicle was insured by National Union Fire Insurance Company of Pittsburgh (hereinafter National Union) at the time of the subject accident. Following a framed-issue hearing, the Court Attorney Referee, in effect, denied the petition, determining that the alleged offending vehicle was not involved in the subject accident and, thus, National Union was not required to provide coverage for the subject accident.
The petitioner has the initial burden of showing sufficient facts to establish justification for the stay of arbitration ( see Matter of Hertz Corp. v. Holmes, 106 A.D.3d 1001, 1002, 966 N.Y.S.2d 157; Matter of AutoOne Ins. Co. v. Umanzor, 74 A.D.3d 1335, 1336, 903 N.Y.S.2d 253). Here, the petitioner failed to meet its initial burden of identifying the alleged offending vehicle and showing that the alleged offending vehicle was, in fact, insured at the time of the accident ( see Matter of Progressive Northeastern Ins. Co. v. Gibson, 62 A.D.3d 804, 877 N.Y.S.2d 904; Matter of New York Cent. Mut. Fire Ins. Co. [ Reid ], 34 A.D.3d 333, 825 N.Y.S.2d 448; Matter of Insurance Co. of State of Pa. v. Dentale, 32 A.D.3d 854, 855, 821 N.Y.S.2d 115; Matter of Allstate Ins. Co. v. Esposito, 15 A.D.3d 648, 648–649, 791 N.Y.S.2d 125; Matter of Government Empls. Ins. Co. v. Williams–Staley, 288 A.D.2d 471, 472, 733 N.Y.S.2d 74; Matter of Eagle Ins. Co. v. Pusey, 271 A.D.2d 445, 445–446, 706 N.Y.S.2d 123). To the extent that the determination of the Supreme Court was based upon the assessment of the credibility of the witnesses, such determination is entitled to deference on appeal, and we discern no basis to disturb it ( see Matter of Government Empls. Ins. Co. v. Morris, 95 A.D.3d 887, 888–889, 942 N.Y.S.2d 642; Matter of Allstate Ins. Co. v. Hang Li Wang, 46 A.D.3d 807, 808, 847 N.Y.S.2d 477). Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding. RIVERA, J.P., HALL, ROMAN and MILLER, JJ., concur.