IN RE: MERCURY INSURANCE GROUP (2007)

In a proceeding, inter alia, 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, Orange County (Horowitz, J.), dated February 5, 2007, as denied that branch of the petition which was to permanently stay the arbitration.

ORDERED that the order is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Orange County, for an evidentiary hearing to determine whether Progressive Insurance Company validly disclaimed coverage of the offending vehicle for the subject accident, and thereafter, for a new determination on that branch of the petition which was to permanently stay the arbitration;  and it is further,

ORDERED that the temporary stay of arbitration contained in the decision and order on motion of this Court dated June 20, 2007, is continued pending the evidentiary hearing and the new determination on the petition;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

Contrary to the determination of the Supreme Court, the petitioner, Mercury Insurance Group (hereinafter Mercury), made a prima facie showing that the offending hit-and-run vehicle was insured by Progressive Insurance Company (hereinafter Progressive) on the date of the accident through the submission, inter alia, of the police accident report containing the vehicle's insurance code (see Matter of Nationwide Ins. Enter. v. Harris, 44 A.D.3d 947, 844 N.Y.S.2d 121;  Matter of Utica Mut. Ins. Co. v. Colon, 25 A.D.3d 617, 618, 807 N.Y.S.2d 634;  Matter of New York Cent. Mut. Fire Ins. Co. v. Licata, 24 A.D.3d 450, 451, 807 N.Y.S.2d 380;  Matter of AIU Ins. Co. v. Nunez, 17 A.D.3d 668, 793 N.Y.S.2d 514;  Matter of Eagle Ins. Co. v. Beauvil, 297 A.D.2d 736, 737, 747 N.Y.S.2d 774;  Matter of Government Empls. Ins. Co. v. McFarland, 286 A.D.2d 500, 729 N.Y.S.2d 739;  Matter of Liberty Mut. Ins. Co. v. Bohl, 262 A.D.2d 645, 646, 694 N.Y.S.2d 72;  Matter of State Farm Ins. Co. v. Vanblarcom, 226 A.D.2d 732, 641 N.Y.S.2d 698).   In this regard, the challenge to the admissibility of the report by Noemi Ocana, who was injured when the offending vehicle struck her vehicle, and sought uninsured motorist benefits from Mercury, is improperly raised for the first time on appeal, and we decline to reach the issue, since the petitioner did not have an opportunity to present opposing evidence on this question before the Supreme Court (see Sarva v. Chakravorty, 34 A.D.3d 438, 439, 826 N.Y.S.2d 74;  Weber v. Jacobs, 289 A.D.2d 226, 733 N.Y.S.2d 910;  Fresh Pond Rd. Assoc. v. Estate of Schacht, 120 A.D.2d 561, 502 N.Y.S.2d 55;  Orellano v. Samples Tire Equip. & Supply Corp., 110 A.D.2d 757, 758, 488 N.Y.S.2d 211).   The burden thus shifted to Ocana to establish either a lack of insurance coverage or a timely and valid disclaimer of coverage by Progressive (see Matter of Eagle Ins. Co. v. Rodriguez, 15 A.D.3d 399, 400, 790 N.Y.S.2d 167;  Matter of Liberty Mut. Ins. Co. v. McDonald, 6 A.D.3d 614, 615, 775 N.Y.S.2d 83;  Matter of American Cas. Ins. Co. v. Walcott, 300 A.D.2d 478, 751 N.Y.S.2d 560;  Brogan v. New Hampshire Ins. Co., 250 A.D.2d 562, 673 N.Y.S.2d 156;  Country Wide Ins. Co. v. Allstate Ins. Co., 223 A.D.2d 664, 637 N.Y.S.2d 218;  Matter of Centennial Ins. Co. v. Capehart, 220 A.D.2d 499, 632 N.Y.S.2d 179).   The disclaimer letter issued by Progressive, while not establishing as a matter of law that Progressive validly disclaimed coverage due to a lack of cooperation on the part of its insured (see generally Matter of Empire Mut. Ins. Co. [Stroud & Boston Old Colony Ins. Co.], 36 N.Y.2d 719, 367 N.Y.S.2d 972, 328 N.E.2d 485;  Matter of Liberty Mut. Ins. Co. v. Roland-Staine, 21 A.D.3d 771, 802 N.Y.S.2d 6;  Matter of Eveready Ins. Co. v. Mack, 15 A.D.3d 400, 790 N.Y.S.2d 48), sufficed to raise factual questions as to the validity of the disclaimer which warrant a hearing (see Matter of Allstate Ins. Co. v. Anderson, 303 A.D.2d 496, 755 N.Y.S.2d 724;  Matter of Lumbermens Mut. Cas. Co. v. Beliard, 256 A.D.2d 579, 682 N.Y.S.2d 430;  see generally Matter of Nationwide Ins. Co. v. Sillman, 266 A.D.2d 551, 699 N.Y.S.2d 98;  Matter of Eagle Ins. Co. v. Sadiq, 237 A.D.2d 605, 655 N.Y.S.2d 601).   Accordingly, we remit the matter to the Supreme Court, Orange County, for a hearing on that issue, and, thereafter, for a new determination on that branch of the petition which was for a permanent stay of arbitration.