IN RE: PROGRESSIVE INSURANCE COMPANY (2019)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 5, 2018, which denied petitioner's application to stay arbitration under the supplemental underinsured motorist provision of a policy issued to nonparty Josef Traffic Consulting & Expediting Service (Josef), and dismissed the petition, unanimously reversed, on the law, without costs, the petition reinstated, and the matter remanded for a hearing on the issue of whether respondents were “occupying” Josef's van at the time of the accident.

It is for a court, not an arbitrator, to decide the threshold issue of whether respondents were occupying the van, i.e., whether they were “insureds” entitled to demand arbitration (see e.g. Matter of Continental Cas. Co. v. Lecei, 47 A.D.3d 509, 850 N.Y.S.2d 76 [1st Dept. 2008] ).  Unlike the agreement in Matter of Monarch Consulting, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 26 N.Y.3d 659, 669, 47 N.E.3d 463 [2016], the arbitration clause in the subject policy does not say that the arbitrator will decide arbitrability.

A framed-issue hearing is required because “there is a genuine triable issue” (Matter of AIU Ins. Co. v. Cabreja, 301 A.D.2d 448, 449, 754 N.Y.S.2d 253 [1st Dept. 2003] [internal quotation marks omitted] ) as to whether respondents were occupying the van.