Opinion
February 25, 1991
Appeal from the Supreme Court, Nassau County (Di Noto, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the application is denied, and the petitioner is directed to proceed to arbitration.
As the party seeking to stay arbitration, it was incumbent upon the petitioner to establish that the offending vehicle was insured by the appellant. Once the petitioner established a prima facie case, the burden shifted to the appellant to come forward with evidence to demonstrate otherwise (see, Matter of Empire Mut. Ins. Co. [Greaney — National Union Fire Ins. Co.], 156 A.D.2d 154; Eveready Ins. Co. v Blackett, 148 A.D.2d 413).
Even assuming that the petitioner satisfied its burden (see, Matter of Colonial Penn Ins. Co. v Michel, 163 A.D.2d 307; Matter of Peerless Ins. Co. v Milloul, 140 A.D.2d 346), the record shows that the appellant presented sufficient evidence to rebut that showing. Its underwriter testified that the purported policy number was not one issued by the appellant and that he conducted an exhaustive search of the company's files which disclosed that no policy of insurance was ever issued to the offending vehicle (see, Matter of Empire Mut. Ins. Co. [Greaney — National Union Fire Ins. Co.], supra; cf., Matter of State Wide Ins. Co. v Libecci, 104 A.D.2d 893; Nassau Ins. Co. v Minor, 72 A.D.2d 576; Matter of Safeco Ins. Co. [Testagrossa], 67 A.D.2d 979). Thus, the Supreme Court erred in granting the petitioner's application to stay arbitration. Mangano, P.J., Brown, Sullivan, Harwood and Miller, JJ., concur.