AMERICAN TRANSIT INSURANCE COMPANY v. Pauline Y. Louzar, et al., Additional Respondents-Respondents. (2000)

Order, Supreme Court, New York County (Beverly Cohen, J.), entered September 9, 1999, denying petitioner's application for a permanent stay of arbitration of respondent Baez's claim for uninsured motorist benefits, unanimously affirmed, with costs.

 At common law, the owner of an automobile who leaves her keys in her car is not liable for the negligence of a thief (see, Phifer v. State of New York, 204 A.D.2d 612, 612 N.Y.S.2d 225, Epstein v. Mediterranean Motors Inc., 109 A.D.2d 340, 343, 491 N.Y.S.2d 391, affd 66 N.Y.2d 1018, 499 N.Y.S.2d 397, 489 N.E.2d 1299), and there is no demonstration that respondent owner Pauline Louzar left her vehicle “unattended” within the meaning of Vehicle and Traffic Law § 1210(a) on the occasion of its theft.   Rather, she left the vehicle with her husband, who, at the time was seated in the right front passenger seat.   Then her husband momentarily stepped away from the vehicle to prepay the pump attendant for refueling, at which time her car was stolen (see, Matter of Hartford Ins. Co. [Aquaviva], 179 A.D.2d 546, 578 N.Y.S.2d 568;  Simon v. El Serv. Corp., 85 A.D.2d 556, 452 N.Y.S.2d 407).   Accordingly, the owner's liability coverage, issued by respondent Travelers Insurance Company, may not be reached in satisfaction of respondent Baez's claim stemming from Baez's collision with the stolen vehicle, and the arbitration of such claim pursuant to the uninsured motorist indorsement of his policy with petitioner insurer was properly permitted to proceed.

MEMORANDUM DECISION.