IN RE: NEW YORK CENTRAL MUTUAL FIRE INS. CO. (2002)

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated November 1, 2001, which denied the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the offending vehicle was insured at the time of the accident, and the arbitration is stayed pending a new determination in accordance herewith.

 The uninsured motorist indorsement of an insurance policy does not operate unless and until it has been established that there was no insurance coverage on the offending vehicle on the date of the accident (see Matter of Nationwide Ins. Co. v. Sillman, 266 A.D.2d 551, 552, 699 N.Y.S.2d 98;  Matter of State Farm Mut. Ins. Co. v. Vazquez, 249 A.D.2d 312, 670 N.Y.S.2d 901;  Matter of Eagle Ins. Co. v. Sadiq, 237 A.D.2d 605, 655 N.Y.S.2d 601).   Thus, the additional respondent Chrysler Insurance Company must produce a copy of its insurance policy in order to establish that the alleged nonpermissive use of the rental vehicle either fell under an exclusion to its policy for which it issued a timely disclaimer, or that the nonpermissive use is not within the ambit of its policy.   It is insufficient to establish the uninsured status of the offending vehicle in this CPLR article 75 proceeding simply by alleging that the unauthorized use of the rental vehicle violated the terms of the rental agreement.   Only after it is determined that the policy contained a provision stating that coverage is not afforded for use of the vehicle without permission of the owner, Adir One, Inc., should the court confront the question of whether the restrictions in the rental agreement are enforceable such that Dovber Lipskier's use of the vehicle can be considered nonpermissive (see e.g. Motor Vehicle Acc. Ind. Corp. v. Continental Nat. Amer. Group Co., 35 N.Y.2d 260, 264, 360 N.Y.S.2d 859, 319 N.E.2d 182;  Matter of Allstate Indem. Co. v. Nelson, 285 A.D.2d 545, 728 N.Y.S.2d 82;  Faller v. A. Drive Auto Leasing System, 47 A.D.2d 530, 363 N.Y.S.2d 602;  Cooperman v. Ferrentino, 37 A.D.2d 474, 476-478, 326 N.Y.S.2d 675), and the question of whether the additional respondents have submitted substantial evidence that the use of the rental car was without the permission of the lessee (see e.g. Matter of Allstate Indem.   Co. v. Nelson, supra;  Naidu v. Harwin, 281 A.D.2d 525, 721 N.Y.S.2d 826;  Headley v. Tessler, 267 A.D.2d 428, 700 N.Y.S.2d 849;  Matter of Utica Mut. Ins. Co. (Lahey), 95 A.D.2d 150, 153, 465 N.Y.S.2d 553;  Hardeman v. Mendon Leasing Corp., 87 A.D.2d 232, 236-238, 450 N.Y.S.2d 808, affd. 58 N.Y.2d 892, 460 N.Y.S.2d 499, 447 N.E.2d 47;  Aetna Ins. Co. v. Johnson, 84 A.D.2d 505, 443 N.Y.S.2d 231;  Speller v. Ryder Truck Rental, 47 A.D.2d 608, 363 N.Y.S.2d 823).

Accordingly, the petition is reinstated and the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the offending vehicle was insured at the time of the accident.   In the interim, the arbitration is temporarily stayed.