Transportation Insurance v. Phillips — 248 A.D.2d 392

Majority

p. 392

In the Matter of Transportation Insurance Company, Appellant, v Michael E. Phillips, Respondent, and Allstate Insurance Company et al., Respondents. (Matter No. 1.) Michael Phillips, Plaintiff, v Sandra Boyer et al., Defendants. (Matter No. 2.)

[669 NYS2d 860]

—In a consolidated proceeding to stay arbitration of an uninsured motorist claim, and an action to recover damages for personal injuries, the petitioner, Transportation Insurance Company, appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated January 16, 1997, which denied the petition and dismissed the proceeding.

Ordered that the order is affirmed, with costs.

The burden of justifying a stay of arbitration is on the party seeking the stay (see, Matter of State Farm Mut. Auto. Ins. Co. v Fenelon, 202 AD2d 436 ). We find that the respondent Michael E. Phillips was struck by an unidentified motor vehicle during the incident in question. Thus, the petitioner failed to meet its burden, and the petition to stay arbitration was properly denied.

Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.

Cases cited

State Farm Mutual Automobile Insurance v. Fenelon 202 AD2d 436 N.Y. App. Div. 1994-03-07 p. 392