Opinion
Index No. EC2023-34863
10-16-2023
In the Matter of the Application of Integon Casualty Insurance Company, Petitioner, v. Donna Middleton, Respondent.
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Jericho (Paul J. Catone and Robert J. Passarelli of counsel), for petitioner. Conway & Kirby, PLLC, Delmar (Andrew W. Kirby of counsel), for respondent.
Unpublished Opinion
McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Jericho (Paul J. Catone and Robert J. Passarelli of counsel), for petitioner.
Conway & Kirby, PLLC, Delmar (Andrew W. Kirby of counsel), for respondent.
ROBERT J. MULLER, J.S.C.
On February 3, 2017, respondent was injured when the vehicle she was driving was struck by another vehicle that was involved in a high-speed chase with authorities. Respondent had a policy with petitioner for, inter alia, supplemental uninsured motorist (hereinafter SUM) coverage and, on February 16, 2017, she advised petitioner of her intention to make a claim for such coverage. Respondent thereafter asserted a claim against the owner of the other vehicle, ultimately settling that claim with the owner's insurance carrier on November 8, 2018 for $25,000.00, the full amount of the policy. Respondent then executed a release. On November 29, 2018, respondent advised petitioner of this settlement and, on December 20, 2018, petitioner disclaimed SUM coverage based upon respondent's failure to comply with the terms of the policy. Specifically, this disclaimer quoted the following policy terms:
"In accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty calendar days actual written notice to us, unless within this time period we agree to advance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured."
Respondent subsequently served petitioner with a demand for arbitration seeking an additional $75,000.00 in SUM benefits under the terms of her policy. This demand was initially served on petitioner on December 27, 2022 under Insurance Law § 1212 (b), which provides that "[s]ervice of process upon any... insurer in any proceeding in any court of competent jurisdiction may be made by serving the superintendent, any deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose, all of whom shall have authority to accept such service." Respondent then sent the demand for arbitration to petitioner by certified mail, return receipt requested, on January 20, 2023. Such service was presumably effectuated under CPLR 7503 (c), which provides that a demand for arbitration "shall be served in the same manner as a summons or by registered or certified mail, return receipt requested." On February 8, 2023, petitioner filed the instant petition seeking a permanent stay of the arbitration based upon respondent's failure to provide it with 30-day advance written notice of her intention to settle with the insurance carrier for the other vehicle. Alternatively, petitioner seeks discovery prior to the arbitration.
Before addressing the merits of the petition, there are certain preliminary issues requiring discussion. Initially, respondent contends that the application is untimely under CPLR 7503 (c), which provides that "[a]n application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded." More specifically, respondent contends that petitioner was served with the demand on December 27, 2022 pursuant to Insurance Law § 1212 (b) and, as such, the application to stay arbitration had to be filed on or before January 16, 2023. Petitioner, on the other hand, contends that service of a demand for arbitration under Insurance Law § 1212 (b) is impermissible, with CPLR 7503 (c) "the exclusive province" for service of a demand for arbitration.
The Court finds that petitioner's contention is without merit. "'When interpreting a statute, [the Court must] turn first to its text as the best evidence of the Legislature's intent[, and, a]s a general rule, a statute's plain language is dispositive'" (Matter of DeVera v Elia, 152 A.D.3d 13, 19 [3d Dept 2017], affd 32 N.Y.3d 423 [2018], quoting Matter of Polan v State of NY Ins. Dept., 3 N.Y.3d 54, 58 [2004] [citation omitted]; see Matter of Retired Pub. Empls. Assn., Inc. v Cuomo, 123 A.D.3d 92, 94 [3d Dept 2014]). Here, CPLR 7503 (c) plainly states that a demand for arbitration "shall be served in the same manner as a summons or by registered or certified mail, return receipt requested," thus providing respondent with different options for service. To the extent that Insurance Law § 1212 (b) provides for a manner of service of a summons upon "any insurer in any proceeding in any court of competent jurisdiction," service upon petitioner under Insurance Law § 1212 (b) on December 27, 2022 was permissible under CPLR 7503 (c) (see Matter of Nationwide Mut. Ins. Co. [Messa], 111 Misc.2d 957, 960 [Sup Ct, NY County 1981]).
That being said, the Court further finds that petitioner's time to file a petition to stay arbitration did not begin on December 27, 2022 - the date upon which the demand was served upon the Department of Financial Services (hereinafter DFS). Rather, it began when the demand was received by petitioner (see Matter of Knickerbocker Ins. Co. [Gilbert], 28 N.Y.2d 57, 65-66 [1971]; Matter of Nationwide Mut. Ins. Co. [Messa], 111 Misc.2d at 960). Indeed, as observed by the Court of Appeals, "[r]eceipt of the notice to arbitrate is significant... for the purpose of starting the adversary's time to serve his notice to stay" (Matter of Knickerbocker Ins. Co. [Gilbert], 28 N.Y.2d at 65).
Here, the record fails to include the date upon which petitioner received the demand from DFS. Significantly, petitioner does not deny receiving the demand from DFS - it simply, and perhaps conveniently, fails to indicate the date it was received. For the instant petition - filed on February 8, 2023 - to be timely, petitioner would have had to receive the demand in the mail after January 19, 2023. That is more than three weeks after the demand was delivered to DFS and presumably sent, making it highly unlikely that this petition was filed in a timely manner. To the extent respondent has established that she properly effectuated service of the demand pursuant to Insurance Law § 1212 (b), there exists a presumption of receipt (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 A.D.3d 958, 959 [2d Dept 2008]; Kaperonis v Aetna Cas. & Sur. Co., 254 A.D.2d 334, 335 [2d Dept 1998]). Unfortunately, however, without a date of receipt, it is difficult for this Court to deem the application untimely as a matter of law.
The Court inquired during oral argument as to the date of receipt of the demand from DFS, but counsel for petitioner was unable to provide this information.
Respondent next contends that the application must be denied because it is not supported by evidence in admissible form, relying upon the following excerpt from Matter of All Am. Ins. Co. v Wilson (207 A.D.3d 1124 [4th Dept 2022]):
"Contrary to petitioner's contention, the court properly denied the petition inasmuch as it was not supported by evidence in admissible form. Petitioner attached to the petition what it purported to be the commercial garage policy issued to the car dealership that contained the SUM endorsement at issue in this proceeding. However, the policy that petitioner attached to the petition was not certified or otherwise authenticated, and was therefore not in admissible form. The affirmation of petitioner's attorney does not render the policy admissible, inasmuch as the relevant portion of the affirmation is not based on the attorney's personal knowledge. Petitioner attempted to cure that evidentiary defect in its reply by attaching a certified copy of a policy issued by petitioner to the car dealership, but that policy differs from the policy that had been attached to the petition (id. at 1124-1125 [citations omitted]).
Indeed, much like petitioner in Matter of All Am. Ins. Co. v Wilson, petitioner here failed to attach a copy of respondent's policy to the petition - instead attaching a declarations page that fails to include the relevant language upon which petitioner disclaimed SUM coverage. While petitioner has attempted to correct this by attaching a complete copy of the policy to the reply affidavit of its counsel, this copy is not certified or otherwise authenticated and therefore is not in admissible form. Further, the reply affidavit does not render it admissible, as the affidavit is not based on counsel's personal knowledge. In this regard, it must also be noted that the petition itself was verified only by counsel. Incidentally, petitioner makes no arguments whatsoever with respect to these obvious deficiencies.
Under the circumstances, the Court finds that petitioner has failed to support the petition with evidence in admissible form (see Matter of All Am. Ins. Co. v Wilson, 207 A.D.3d at 1125; Matter of Global Liberty Ins. Co. v Abdelhaq, 36 A.D.3d 909, 910 [2007]; compare Calhoun v Midrox Ins. Co., 165 A.D.3d 1450, 1451 [2018]). The relief requested is therefore denied and the petition dismissed.
Therefore, having considered NYSCEF document Nos. 1 through 10, 14 through 16, 19 through 21, and 25, and oral argument having been heard on September 15, 2023 with Paul J. Catone, Esq. appearing on behalf of petitioner and Andrew W. Kirby, Esq. appearing on behalf of respondent, it is hereby
ORDERED AND ADJUDGED that the relief requested is denied; and it is further
ORDERED AND ADJUDGED that the petition is dismissed.
This Decision and Order has been efiled by the Court. Counsel for respondent is hereby directed to serve with notice of entry.