ALLSTATE INSURANCE COMPANY v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of the Arbitration between TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, Respondent, ALLSTATE INSURANCE COMPANY, Appellant.

Decided: March 13, 1998

Before GREEN, J.P., and PINE, LAWTON, HAYES and WISNER, JJ. Thomas P. Durkin, Geneseo, for Petitioner-Appellant. Allen D. Werter by Michael Reddy, Carle Place, for Respondent-Respondent.

Supreme Court properly denied the petition of Allstate Insurance Company (Allstate) seeking a permanent stay of a loss transfer arbitration proceeding instituted by respondent, Travelers Property Casualty Insurance Company (Travelers), pursuant to Insurance Law § 5105.   This proceeding arises from a chain reaction accident on Route 15 in the Town of Avon in which a vehicle driven by Allstate's insured struck another vehicle, which then hit the vehicle of Travelers' insured and drove it into the rear of a truck weighing more than 6,500 pounds when unloaded.   The vehicle of Travelers' insured and the vehicle behind it were stopped because the truck had slowed almost to a stop while trying to negotiate an underpass.   After paying no-fault benefits to its insured, Travelers made a loss transfer claim against Allstate for reimbursement of those expenses and demanded arbitration pursuant to Insurance Law § 5105.   Allstate then commenced this proceeding seeking a permanent stay of arbitration on the ground that there is no legal basis for Travelers' claim for reimbursement because the truck was not involved in the accident (see, Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 A.D.2d 901, 651 N.Y.S.2d 784;  Matter of Atlantic Mut. Ins. Co. v. Shaw, 222 A.D.2d 581, 635 N.Y.S.2d 297).   There is no right to a loss transfer arbitration unless “at least one of the motor vehicles involved is a motor vehicle weighing more than six thousand five hundred pounds unloaded or is a motor vehicle used principally for the transportation of persons or property for hire” (Insurance Law § 5105[a] ).   The truck was “involved” within the meaning of the statute because it was part of, or included in, the accident (see generally, McKinney's Cons Laws of N.Y., Book 1, Statutes § 232).

Order unanimously affirmed without costs.

MEMORANDUM: