Opinion
2017–10471 Index No. 608051/16
04-17-2019
In the Matter of COUNTRY–WIDE INSURANCE COMPANY, Appellant, v. Javed CHAUDRY, Respondent-Respondent, et al., Respondents.
Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant. Henry Stanziale, Mineola, N.Y. (Thomas J. Stanziale of counsel), for respondent—respondent.
Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.
Henry Stanziale, Mineola, N.Y. (Thomas J. Stanziale of counsel), for respondent—respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and that branch of the petition which was to permanently stay arbitration is granted.
On or about December 8, 2014, Javed Chaudry allegedly was crossing the street when he was struck by an unidentified hit-and-run vehicle. In a letter dated May 2, 2016, Chaudry advised the petitioner that he would be making a claim for uninsured motorist benefits under an insurance policy issued by the petitioner. The petitioner disclaimed coverage, and in September 2016, Chaudry demanded arbitration of his claim for uninsured motorist benefits. Thereafter, the petitioner commenced this proceeding, inter alia, to permanently stay arbitration of Chaudry's uninsured motorist benefits claim on the ground, among other things, that he failed to report the accident to the police, a peace or judicial officer, or the Commissioner of Motor Vehicles within 24 hours of the accident or as soon as reasonably possible thereafter, as required by the uninsured motorist provisions of the insurance policy. After conducting a framed-issue hearing, the Supreme Court denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding. The petitioner appeals.
The record demonstrates that Chaudry failed to report the alleged hit-and-run accident to the police, a peace or judicial officer, or the Commissioner of Motor Vehicles within 24 hours of the accident or as soon as reasonably possible thereafter, as required by the uninsured motorist provisions of the insurance policy. Additionally, Chaudry failed to provide written notice of his claim and to file a sworn statement within 90 days or as soon as practicable after the accident in accordance with the uninsured motorist provisions of the insurance policy. "Absent a valid excuse, the failure to satisfy the notice requirement of an insurance policy vitiates coverage" ( Ortiz v. Fage USA Corp. , 105 A.D.3d 720, 721, 963 N.Y.S.2d 158 ; see Matter of Allcity Ins. Co. [Jimenez] , 78 N.Y.2d 1054, 576 N.Y.S.2d 87, 581 N.E.2d 1342 ). Contrary to the Supreme Court's determination, Chaudry did not offer a valid excuse for his failure to provide timely notice (see Matter of Allcity Ins. Co. [Jimenez] , 78 N.Y.2d at 1056, 576 N.Y.S.2d 87, 581 N.E.2d 1342 ; Ortiz v. Fage USA Corp. , 105 A.D.3d at 721, 963 N.Y.S.2d 158 ). Accordingly, the court should have granted that branch of the petition which was to permanently stay arbitration of Chaudry's claim for uninsured motorist benefits (see Matter of Ameriprise Ins. Co. v. Katouchis , 165 A.D.3d 1103, 1104, 84 N.Y.S.3d 365 ; Matter of Government Empls. Ins. Co. v. Bartlett , 112 A.D.3d 826, 827, 978 N.Y.S.2d 62 ; Matter of Government Empls. Ins. Co. v. Baik , 94 A.D.3d 888, 889, 941 N.Y.S.2d 872 ; Matter of Hanover Ins. Co. v. Etienne , 46 A.D.3d 825, 826, 848 N.Y.S.2d 312 ; Matter of Eagle Ins. Co. v. Brown , 309 A.D.2d 749, 750, 765 N.Y.S.2d 273 ).
In light of our determination, the petitioner's remaining contention need not be reached.
DILLON, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.