Opinion
5658N Index 22721/16E
02-08-2018
In re HEREFORD INSURANCE COMPANY, Petitioner–Respondent, v. Virgen VAZQUEZ, Respondent, New Rochelle Hyundai, et al., Proposed Additional Respondents, State Farm Insurance Company, Proposed Additional Respondent–Appellant.
Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), for appellant. Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for Hereford Insurance Company, respondent.
Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), for appellant.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for Hereford Insurance Company, respondent.
Renwick, J.P., Manzanet–Daniels, Andrias, Kapnick, Moulton, JJ.
Order, Supreme Court, Bronx County (Lizbeth González, J.), entered January 18, 2017, which, to the extent appealed from as limited by the briefs, granted petitioner Hereford Insurance Company's application to stay arbitration pending a framed issue hearing on coverage and to add State Farm Insurance Company as an additional respondent, unanimously affirmed, without costs.
Petitioner Hereford insured a vehicle that was hit in the rear by a Mercedes Benz that left the scene of the accident. After respondent Virgen Vazquez, a passenger in the Hereford vehicle, demanded uninsured motorist arbitration, Hereford commenced this proceeding seeking to stay the arbitration and add additional respondents, including State Farm and Kelly Lyons. Hereford alleged that, at the time of the accident, the Mercedes was owned by Lyons or others, and that State Farm had issued insurance policy number 596798N11 insuring the Mercedes. In opposition, State Farm neither admitted nor denied the allegations relating to coverage. In reply, Hereford submitted documents demonstrating that the Mercedes had been sold to Lyons three days before the accident, and insured by State Farm under the same policy number previously identified, effective the same date.
Absent any surprise or prejudice to State Farm, which was aware that Hereford alleged that it had insured the Mercedes under a specified policy and which did not seek to submit a surreply, the motion court providently exercised its discretion in considering the documents submitted by Hereford in reply (see Matter of Kennelly v. Mobius Realty Holdings, LLC, 33 A.D.3d 380, 381–382, 822 N.Y.S.2d 264 [1st Dept. 2006] ; Kelsol Diamond Co. v. Stuart Lerner, Inc., 286 A.D.2d 586, 587, 730 N.Y.S.2d 218 [1st Dept. 2001] ; Jones v. Geoghan, 61 A.D.3d 638, 640, 876 N.Y.S.2d 508 [2d Dept. 2009] ). Notably, Hereford could have sought leave to amend the petition based on the same documents, leading to the same outcome (see Matter of Allcity Ins. Co. [Russo], 199 A.D.2d 88, 605 N.Y.S.2d 41 [1st Dept. 1993] ; see also Matter of Government Empls. Ins. Co. v. Albino, 91 A.D.3d 870, 871, 937 N.Y.S.2d 294 [2d Dept. 2012] ).
Since Hereford met its burden of showing "sufficient evidentiary facts" to establish a "genuine preliminary issue" justifying the stay, the motion court properly stayed arbitration pending a trial of the threshold issue of coverage ( Matter of Empire Mut. Ins. Co. [Zelin], 120 A.D.2d 365, 366, 502 N.Y.S.2d 20 [1st Dept. 1986] ; see also Matter of AIU Ins. Co. v. Cabreja, 301 A.D.2d 448, 449, 754 N.Y.S.2d 253 [1st Dept. 2003] ).