IN RE: ALLSTATE INSURANCE COMPANY (2005)

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated May 18, 2004, as denied the petition.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, with costs, and the petition is granted.

The respondents allegedly were injured when the vehicle in which they were passengers collided with another vehicle, and was then struck in the rear by a third vehicle.   The third vehicle fled the scene, and the identity of its owner and operator has never been ascertained.   At the time of the accident, the vehicle the respondents were traveling in was insured by the petitioner, Allstate Insurance Company (hereinafter Allstate).   Shortly after the accident, the respondents' attorney notified Allstate that the respondents were making a claim for uninsured/underinsured motorist benefits under the policy it had issued to its insured.   However, neither this claim letter, nor the “Notice of Intention to Make Claim” forms and applications for no-fault benefits which the respondents submitted to Allstate, indicated that an unidentified or hit-and-run vehicle was involved in the accident.   The respondents subsequently demanded arbitration of their claim for uninsured motorist benefits arising from a hit-and-run accident, and Allstate commenced this proceeding to permanently stay arbitration.   In its petition, Allstate alleged that the respondents failed to comply with a policy provision that required a claimant to file a statement under oath, within 90 days after the accident, that he or she has a cause of action arising out of an accident with a hit-and-run vehicle.   In opposition to the petition, the respondents argued that the notice provisions of Allstate's policy were ambiguous because another section of its uninsured motorist endorsement required a claimant to furnish sworn proof of claim “after written request” by Allstate.   The Supreme Court denied Allstate's application for a permanent stay, and we now reverse.

The requirement that a claimant file a sworn statement that he or she has a cause of action arising out of an accident with a hit-and-run vehicle, within 90 days after the accident, is a condition precedent to coverage under an uninsured motorist endorsement (see Matter of Empire Ins. Co. v. Dorsainvil, 5 A.D.3d 480, 772 N.Y.S.2d 565;  Matter of Legion Ins. Co. v. Estevez, 281 A.D.2d 420, 721 N.Y.S.2d 273;  Matter of Aetna Life & Cas. v. Ocasio, 232 A.D.2d 409, 648 N.Y.S.2d 159;  Matter of State Farm Ins. Co. v. Velasquez, 211 A.D.2d 636, 621 N.Y.S.2d 357).   Absent a valid excuse, the failure to comply with this condition precedent vitiates coverage (see Matter of Allcity Ins. Co. v. Jimenez, 78 N.Y.2d 1054, 576 N.Y.S.2d 87, 581 N.E.2d 1342;  Matter of Empire Ins. Co. v. Dorsainvil, supra;  Matter of Interboro Indem. Mut. Ins. Co. v. Napolitano, 232 A.D.2d 561, 648 N.Y.S.2d 978;  Matter of Travelers Indem. Co. v. Madera, 189 A.D.2d 570, 592 N.Y.S.2d 23).   However, we have also recognized that where, as here, an uninsured motorist endorsement contains ambiguous notice of claim provisions, “a failure to file a sworn statement of the hit-and-run claim * * * does not necessarily vitiate coverage when the carrier otherwise receives adequate notice of the claim” within the requisite 90-day period (Matter of American Home Assur. Co. v. Joseph, 213 A.D.2d 633, 634, 624 N.Y.S.2d 250;  see also Matter of Eveready Ins. Co. v. Farrell, 304 A.D.2d 830, 757 N.Y.S.2d 859;  Matter of Eveready Ins. Co. v. Ruiz, 208 A.D.2d 923, 618 N.Y.S.2d 80).   Here, neither the respondents' claim letter, applications for no-fault benefits, nor “Notice of Intention to Make Claim” forms provided Allstate with any notice that a hit-and-run vehicle had been involved in the accident.   Under these circumstances, the respondents failed to provide Allstate with adequate notice of their claim.   Thus, the petition for a permanent stay of arbitration should have been granted (see Matter of American Home Assur. Co. v. Joseph, supra ).