Opinion
Index 157680/2020
02-15-2022
STATE FARM MUTUTAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. FRANKLYN LORA, LTM TRANSPORTATION CORP., AMERICAN INTER-FIDELITY EXCHANGE, DRIVE NEW JERSEY INSURANCE COMPANY Defendant.
Unpublished Opinion
PRESENT: HON. FRANK NERVO Justice
DECISION + ORDER ON MOTION
FRANK NERVO, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 15, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27 were read on this motion to/for STAY .
This matter was transferred to Part IV.
Petitioner seeks, inter alia, an order permanently staying uninsured motorist arbitration on the basis that respondent failed to act with due diligence in ascertaining the insurance status of the other vehicle involved in the accident. Respondent Lora opposes contending that whether he acted with due diligence is a factual determination, he appeared for an examination under oath as required under the policy to receive coverage, and that he has proven the other vehicle was uninsured at the time of the accident.
"The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay" (Matter of AutoOne Ins. Co. v. Umanzor, 74 A.D.3d 1335 [2d Dept 2010]; see also Hereford Ins. Co. v. Vazquez, 158 A.D.3d 470 [1st Dept 2018]). An insured must act with due diligence in ascertaining the insurance status of the other vehicle involved in an accident (see e.g. Matter of Continental Ins. Co. v. Josephson, 280 A.D.2d 546 [2d Dept 2001]). "Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue" (Matter of Hertz Corp. v. Holmes, 106 A.D.3d 1001 [2d Dept 2013]).
Here, respondent Lora has raised a triable issue of fact related to whether he exercised due diligence in ascertaining the insurer, if any, of the other vehicle. Lora contends, inter alia: that he has photographs of the other vehicle involved in the accident, including photographs of the vehicle's trailer's license plate; that he spoke to the driver of the other vehicle; and he subsequently attempted to confirm whether various insurers provided coverage to the other vehicle. Respondent Lora further contends that he did not allow the photographs to be inspected by petitioner's counsel at his examination under oath because the photographs were located on his cellphone, which contained personal and private information.
Accordingly, it is
ORDERED that the motion is granted to the extent of directing respondent Lora serve copies of the photographs taken at the accident scene, including meta data contained therein, to all parties on or before March 18, 2022; and it is further
ORDERED that a framed issue hearing shall occur on April 27, 2022 at 3:30pm via Microsoft Teams as to whether respondent Lora exercised requisite due diligence in ascertaining the insurance status of the other vehicle; and it is further
ORDERED that decision is reserved on the portion of the motion seeking a permanent stay until completion of the framed issue hearing, as above; and it is further
ORDERED that arbitration proceedings are temporarily stayed pending the framed issue hearing, as above; and it is further
ORDERED that all parties shall provide the Court with courtesy electronic copies of evidence they intend to introduce at the framed issue hearing by April 15, 2022 in a single email to SFC-Part4-Clerk@nycourts.gov; and it is further
ORDERED that should, upon inspection of the photographs and evidence intended to be introduced at the hearing, the parties reach resolution of the issue or of this matter, they shall file a stipulation to NYSCEF so stating by April 22, 2022; and it is further
ORDERED that the motion is otherwise denied.
This constitutes the Decision and Order of the Court.