IN RE: PROGRESSIVE DIRECT INSURANCE COMPANY (2026)

Order, Supreme Court, Bronx County (Raymond P. Fernandez, J.), entered on or about December 17, 2025, which granted the petition to permanently stay respondent's supplemental uninsured motorist arbitration demand, unanimously reversed, on the law, without costs, the permanent stay vacated, the matter remanded to Supreme Court and the arbitration stayed pending a hearing to determine whether there was physical contact between respondent's motorcycle and another vehicle, and whether respondent complied with the requirement to report the accident within 24 hours.

“Physical contact is a condition precedent to an arbitration based on a ‘hit and run’ accident and the burden of proof to demonstrate physical contact is upon the insured” (Matter of Country–Wide Ins. Co. v Colon, 279 A.D.2d 427, 427 [1st Dept 2001] ).  Here the EMS Report provided conflicting accounts of whether there was physical contact between respondent and another vehicle.  On the one hand it said that respondent “almost collided with a car, causing him to panic and fall of his bike,” while on the other it listed the “Dispatch Reason” as “Pedestrian Struck.”  Respondent maintained in his affirmation that an “unknown vehicle” “struck [his] motorcycle,” supporting the notion that there was actual contact.  A framed issue hearing is necessary to resolve these discrepancies (see Matter of Universal Underwriters [Zeitlin], 157 A.D.2d 544, 546 [1st Dept 1990] ).

A framed issue hearing is also necessary to determine if respondent complied with the 24–hour reporting requirement in the policy.  Applying “a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator's obtaining a written report” (Country Wide Ins. Co. v. Russo, 201 A.D.2d 368, 370 [1st Dept 1994] ), we find that Supreme Court erred in finding that no questions exist as to whether respondent complied.  The EMS Report stated that “[u]pon arrival, [respondent] was found sitting on the sidewalk with NYPD present.”  Respondent's affirmation supports this view as he stated that he provided identifying information “to the police at the scene and [he was] unsure why an NYPD report was never made.”