IN RE: COLONIAL PENN INSURANCE COMPANY (1999)

In a proceeding to stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated April 2, 1998, which denied the petition and dismissed the proceeding, without a hearing on the issue of whether the offending vehicle was insured at the time of the accident.

ORDERED that the order is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for the joinder of the proposed additional respondents Liberty Mutual Insurance Company and Bryan R. Schretzmayer, and for a hearing on the issue of whether the offending vehicle was insured at the time of a June 4, 1997, accident.

The petitioner contends that the termination of coverage by the proposed additional respondent Liberty Mutual Insurance Company (hereinafter Liberty) effective May 15, 1997, was not effective with respect to the claim made by the respondent Jorge Martich arising out of a June 4, 1997, accident because Liberty failed to file a notice of cancellation with the Commissioner of the Department of Motor Vehicles within 30 days of the purported date of termination of the insurance policy (see, Vehicle and Traffic Law § 313 [2][a];  Matter of Liberty Mut. Ins. Co. v. Vidale, 207 A.D.2d 489, 615 N.Y.S.2d 922;  Matter of Liberty Mut. Ins. Co. v. Bethel, 207 A.D.2d 449, 615 N.Y.S.2d 462).   However, if the insurance policy had been in force for at least six months, Liberty would not have been required to file a notice of termination with the Commissioner, and the policy would have been effectively terminated as of the date of the accident (see, Vehicle and Traffic Law § 313 [2][a];  Matter of Hanover Ins. Co., 207 A.D.2d 663, 616 N.Y.S.2d 354).  Thus, the matter is remitted to the Supreme Court for a hearing on this issue.

MEMORANDUM BY THE COURT.