IN RE: FIDUCIARY INSURANCE COMPANY OF AMERICA (2017)

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for supplementary uninsured motorist benefits, the appeal is from an order of the Supreme Court, Kings County (Sunshine, Ct.Atty.Ref.), dated November 17, 2014, which, after a framed-issue hearing, granted that branch of the petition which was to permanently stay arbitration.

ORDERED that the order is reversed, on the law, with costs, that branch of the petition which was to permanently stay arbitration is denied, and the proceeding is dismissed.

The petitioner commenced this proceeding to stay arbitration of a claim for supplementary uninsured motorist benefits that was made by its insured, Renny Greenidge. Greenidge's claim arose out of an automobile accident that occurred when his vehicle was struck by another vehicle. The other vehicle (hereinafter the hit-and-run vehicle) did not stay at the scene of the accident. After a framed-issue hearing, the Supreme Court granted that branch of the petition which was to permanently stay arbitration. We reverse.

“An insurance carrier seeking to stay the arbitration of an uninsured motorist claim has the burden of establishing that the offending vehicle was insured at the time of the accident” (Matter of American Home Assur. Co. v. Wai Ip Wong, 249 A.D.2d 301, 301; see Matter of Eagle Ins. Co. v. Pusey, 271 A.D.2d 445, 445–446). “Once such a prima facie case of coverage is established, the burden shifts to the opposing party to come forward with evidence to the contrary” (Matter of American Home Assur. Co. v. Wai Ip Wong, 249 A.D.2d at 301; see Matter of Eagle Ins. Co. v.. Patrik, 233 A.D.2d 327, 328).

Here, the admissible evidence submitted by the petitioner at the framed-issue hearing failed to establish, prima facie, the existence of insurance coverage for the hit-and-run vehicle at the time of the subject accident (see Matter of Eagle Ins. Co. v. Pusey, 271 A.D.2d at 445–446; Matter of American Home Assur. Co. v. Wai Ip Wong, 249 A.D.2d 301; see also 11 NYCRR 60–2.3; cf. Matter of Liberty Mut. Ins. Co. v. McDonald, 6 AD3d 614, 615). Accordingly, the Supreme Court should have denied that branch of the petition which was to permanently stay arbitration and dismissed the proceeding.