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Lumbermens Mutual Casualty Co. v. Oliphant

Appellate Division of the Supreme Court of New York, Second Department
Jul 3, 1989
152 A.D.2d 541 (N.Y. App. Div. 1989)

Opinion

July 3, 1989

Appeal from the Supreme Court, Queens County (Kassoff, J.).


Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, the proceeding is dismissed as against the appellant, and the proceeding as against Susie Oliphant is severed.

Susie Oliphant was allegedly injured when another vehicle, which left the scene of the accident and the identity of which is in dispute, struck her vehicle. The Supreme Court granted the petitioner, the insurer of Oliphant's vehicle, permission to join as an additional party to this proceeding the appellant Hertz Corporation, owner of what may have been the offending vehicle, and the insurance status of which is not in dispute. However, the order authorizing joinder did not also authorize service upon Hertz Corporation of the notice of petition by certified mail, return receipt requested. Although service of the notice of petition to stay arbitration by that method is sufficient to confer jurisdiction over a party to the proposed arbitration (see, CPLR 7503 [c]), it was insufficient to confer jurisdiction over the Hertz Corporation which was not a party to the proposed arbitration (see, Matter of Allcity Ins. Co. [Guy], 97 A.D.2d 374; Matter of American Sec. Ins. Co. v Stanley, 86 A.D.2d 834; see also, Matter of Hanover Ins. Co. v McIntyre, 142 A.D.2d 728, 729). Moreover, we decline to remit this matter to the Supreme Court, Queens County, for proper joinder and redetermination of whether the Hertz Corporation owned the allegedly offending vehicle. That issue is more properly litigated in a plenary action (cf., Allstate Ins. Co. v Szego, 38 A.D.2d 736). Kunzeman, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.


Summaries of

Lumbermens Mutual Casualty Co. v. Oliphant

Appellate Division of the Supreme Court of New York, Second Department
Jul 3, 1989
152 A.D.2d 541 (N.Y. App. Div. 1989)
Case details for

Lumbermens Mutual Casualty Co. v. Oliphant

Case Details

Full title:LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent, v. SUSIE OLIPHANT…

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

Date published: Jul 3, 1989

Citations

152 A.D.2d 541 (N.Y. App. Div. 1989)
543 N.Y.S.2d 154

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