Opinion
Argued September 18, 2000
October 23, 2000.
In a proceeding to stay arbitration of an uninsured motorist claim, the appeal is from (1) an order of the Supreme Court, Nassau County (Adams, J.), dated October 4, 1 999, which granted the petition and stayed the arbitration, and (2) an order of the same court dated December 1, 1999, which denied the appellants' motion, in effect, for leave to reargue.
Nassy, Hill, Langsam Moin, LLP, New York, N.Y. (Cheryl Eisberg Moin of counsel), for appellants.
Samuel K. Rubin, Bethpage, N.Y. (Lawrence R. Miles of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated December 1, 1999, is dismissed; and it is further,
ORDERED that the order dated October 4, 1999, is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith .
The appellants' motion, denominated as one for leave to renew their opposition to the petition for a stay of arbitration, which was based on supposedly new facts, did not include proof of any "reasonable justification for the failure to present such facts on the prior [application]" (CPLR 2221[e][3]). The motion was, therefore, in effect for leave to reargue, the denial of which is not appealable (see, CPLR 5701[a][2][viii]; Sallusti v. Jones, A.D.2d [2d Dept., June 12, 2000]; Nisnewitz v. Renna, 273 A.D.2d 210 [2d Dept., June 5, 2000]; McCorvey v. Shoulder, 273 A.D.2d 207 [2d Dept., June 5, 2000]; Bossio v. Fiorillo, 222 A.D.2d 476; Vaynshteyn v. Cohen, 266 A.D.2d 280; Citibank v. Olson, 204 A.D.2d 381).
There is an issue of fact as to whether the cancellation of insurance on the offending vehicle was invalid due to non-compliance with Banking Law § 576 (see, 1395 Second Ave. Rest. v. All City Ins. Co., 207 A.D.2d 271; Parkside Food Ctr. v. United Int. Ins. Co., 193 A.D.2d 658; L.Z.R. Raphaely Galleries v. Lumbermens Mut. Cas. Co., 191 A.D.2d 680). The issue of whether the insurance was validly cancelled before the date of the accident cannot be properly litigated without the joinder of Lumbermen's Mutual Casualty Company, the alleged insurer of the offending vehicle . A hearing must therefore be held, preceded by an order joining the alleged insurer of the offending vehicle as well as the owner and driver of that vehicle, as additional parties (see, Matter of New York Cent. Mut. Fire Ins. Co. v. Paillant, 269 A.D.2d 451; Matter of Liberty Mut. Ins. Co. v. Bohl, 262 A.D.2d 6 45).
On November 20, 1998, the petitioner filed a family offense petition against the respondent, who was then her stepdaughter, alleging that the respondent had committed acts constituting harassment in the second degree. The Family Court dismissed the proceeding without a hearing, concluding that it could not exercise jurisdiction over the matter because the petitioner and the respondent were not blood relatives and did not reside together. On appeal, the petitioner correctly contends that at the time the Family Court dismissed this proceeding, she and the respondent were persons related by affinity, and thus members of the "same family or household" as that term is used in the Family Court Act (see, Family Ct Act § 812[a]; Matter of Orellana v. Escalante, 228 A.D.2d 63; Matter of Nadeau v. Sullivan, 204 A.D.2d 913). Accordingly, at the time of dismissal, the Family Court had jurisdiction over this matter. However, it is undisputed that following the dismissal of this proceeding, the marriage between the petitioner and the respondent's father was dissolved by divorce. Thus, the relationship of affinity between the petitioner and the respondent has been terminated, and the Family Court no longer has jurisdiction to entertain an application by the petitioner for an order of protection against her former stepdaughter (see, Matter of Orellana v. Escalante, supra; see also, Chiarello v. Chiarello, 51 A.D.2d 1089; Eckhardt v. Eckhardt, 37 A.D.2d 629). Under these circumstances, we dismiss the appeal as academic.