IN RE: EAGLE INSURANCE COMPANY (2005)

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from so much of an order of the Supreme Court, Kings County (Lodato, J.H.O.), entered February 4, 2004, as, after a hearing, denied the petition.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the respondent-respondent Daniel Rodriguez, the petition is granted, and the arbitration is permanently stayed.

 The respondent Daniel Rodriguez was involved in an automobile accident while operating a vehicle insured by the petitioner.   He subsequently sought arbitration of a claim for uninsured motorist benefits.   The petitioner commenced this proceeding to permanently stay arbitration on the ground that the offending vehicle was insured.   After a hearing, at which the proposed additional respondent Legion Insurance Company failed to appear, the Supreme Court concluded that the offending vehicle was insured, but nevertheless denied the petition.   The petitioner appeals.   Rodriguez contends that the petitioner did not establish that the offending vehicle was insured and, therefore, the petition was properly denied.   Contrary to the petitioner's contention, Rodriguez may raise that issue as an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241;  Rice v. Board of Educ. of City of N.Y., 302 A.D.2d 578, 579, 755 N.Y.S.2d 419;  Lauer v. Great S. Bay Seafood Co., 299 A.D.2d 325, 327, 750 N.Y.S.2d 305).

 The petitioner established a prima facie case as to the existence of insurance coverage for the offending vehicle by producing the police accident report containing the vehicle's insurance code (see Matter of Liberty Mut. Ins. Co. v. McDonald, 6 A.D.3d 614, 615, 775 N.Y.S.2d 83;  Matter of Eagle Ins. Co. v. Beauvil, 297 A.D.2d 736, 737, 747 N.Y.S.2d 774;  Lopez v. Ford Motor Credit Co., 238 A.D.2d 211, 656 N.Y.S.2d 257;  Matter of Eagle Ins. Co. v. Olephant, 81 A.D.2d 886, 439 N.Y.S.2d 159).   The burden then shifted to Rodriguez to establish a lack of coverage.   Since Rodriguez did not rebut the petitioner's prima facie case, the Supreme Court properly concluded that the offending vehicle was insured.   Consequently, the Supreme Court should have granted the petition (see Matter of Lumbermens Mut. Cas. Co. v. Quintero, 305 A.D.2d 684, 685, 762 N.Y.S.2d 82;  Matter of CGU Ins. Co. v. Greatheart, 301 A.D.2d 649, 753 N.Y.S.2d 883).