Matter of American Transit Insurance Company

Appellate Division of the Supreme Court of New York, First DepartmentOct 6, 1994
208 A.D.2d 376 (N.Y. App. Div. 1994)
208 A.D.2d 376617 N.Y.S.2d 7

October 6, 1994

Appeal from the Supreme Court, New York County (Stuart Cohen, J.).

In a proceeding to determine an uninsured motorist claim, proof of insurance offered by a claimant's insurer in the form of a Department of Motor Vehicles DP-37 form ("DMV DP-37") is sufficient prima facie evidence of coverage to shift the burden of going forward with proof to the company disclaiming coverage (see, Matter of Allstate Ins. Co. [Holmes], 173 A.D.2d 260; Matter of Aetna Cas. Sur. Co. v. Dixon, 121 A.D.2d 256). Where the disclaiming company comes forward with sufficient proof, which may consist of testimony that no record of any policy of insurance issued could be located (Matter of Allstate Ins. Co. [Holmes], supra); or that an exhaustive search of company files disclosed that no policy of insurance was ever issued to the offending vehicle (Matter of Nationwide Ins. Co. [Dye], 170 A.D.2d 683); or as to its list of insureds (Matter of General Acc. Ins. Co. [LaMotta], 149 A.D.2d 322, 325), the burden of proof shifts back to the claimant's insurer to come forward with additional evidence of coverage (Matter of Allstate Ins. Co. [Holmes], supra; Matter of Aetna Cas. Sur. Co. v. Dixon, supra).

The hearing court erred when it deemed introduction of the DMV DP-37 by claimant's insurer conclusive evidence of coverage, thereby failing to properly credit the disclaiming company's rebuttal evidence that an exhaustive search was made and no policy could be located. Claimant's insurer's failure to meet its burden of coming forward with additional evidence to demonstrate that a policy of insurance was issued for the offending vehicle should have resulted in a finding in favor of State Farm, the disclaiming company, on this issue.

Concur — Rosenberger, J.P., Ellerin, Ross, Rubin and Williams, JJ.