IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (2005)

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, Nassau County (Dunne, J.), dated August 16, 2004, which, without a hearing, denied the petition and dismissed the proceeding.

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 joinder of the proposed additional respondents Hanover Insurance Company and Sharlisha D. Jackson, and the arbitration is temporarily stayed pending an evidentiary hearing on the issue of whether the offending vehicle was insured at the time of the accident, and a new determination on the petition.

 Vehicle and Traffic Law § 388(1) creates a presumption that a driver uses a vehicle with the owner's express or implied permission (see Murdza v. Zimmerman, 99 N.Y.2d 375, 756 N.Y.S.2d 505, 786 N.E.2d 440) which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent (see Matter of New York Cent. Mut. Fire Ins. Co. v. Dukes, 14 A.D.3d 704, 705, 789 N.Y.S.2d 267;  Murdza v. Zimmerman, supra ).   Although evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use, here, the affidavit of the vehicle owner Sharlisha D. Jackson was insufficient to rebut the presumption (see Matter of New York Cent. Mut. Fire Ins. Co. v. Dukes, supra;  Minaya v. Horner, 279 A.D.2d 333, 718 N.Y.S.2d 839).   In her affidavit, Jackson admitted that she left the car keys in the vehicle at the time of the theft, which raised a triable issue of fact whether the purported disclaimer of coverage by Hanover Insurance Company was proper under the circumstances (see Vehicle and Traffic Law § 1210[a];  Matter of Merchants Ins. Group v. Haskins, 11 A.D.3d 694, 783 N.Y.S.2d 400).