Transportation Insurance v. Phillips — 222 A.D.2d 683

Majority

p. 683

In the Matter of Transportation Insurance Company, Respondent, v Michael E. Phillips, Appellant, and Allstate Insurance, Respondent.

[636 NYS2d 85]

—In a proceeding to stay arbitration of an uninsured motorist claim, Michael E. Phillips appeals from an order of the Supreme Court, Orange County (Barone, J.), dated October 29, 1993, which, without a hearing, granted the petition and denied his cross motion to add Transcontinental Insurance Company and Allstate Insurance as additional respondents and to set the matter down for a framed-issue hearing.

Ordered that the order is reversed, on the law, with costs, Michael E. Phillips’ cross motion is granted, and the matter is remitted to the Supreme Court, Orange County, for further proceedings consistent herewith.

A party seeking to stay arbitration of an uninsured motorist claim bears the initial burden of proving that the alleged offending vehicle was insured (see, Matter of State Farm Mut. Auto. Ins. Co. v Fenelon, 202 AD2d 436 ). Since a threshold question of fact exists as to whether the offending vehicle was unidentified, and thus, whether the offending vehicle was

p. 684

insured, the court should have directed a hearing on this issue and permitted joinder of the two insurance carriers of the alleged offending vehicles (see, Matter of Aetna Cas. & Sur. Co. v Arhaniotis, 202 AD2d 497 ). Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.

Cases cited

State Farm Mutual Automobile Insurance v. Fenelon 202 AD2d 436 N.Y. App. Div. 1994-03-07 p. 683
Aetna Casualty & Surety Co. v. Arhaniotis 202 AD2d 497 N.Y. App. Div. 1994-03-14 p. 684