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New York Central Mutual Fire Insurance v. Douglas

287 A.D.2d 720 Court N.Y. App. Div. Decision date 2001-10-29 English

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p. 720
In the Matter of New York Central Mutual Fire Ins. Co., Appellant, v Esther P. Douglas, Respondent.
[732 NYS2d 58]

—In a proceeding, inter alia, to stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated January 29, 2001, which denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and arbitration is stayed pending an evidentiary hearing in accordance herewith.

The Supreme Court erred in denying the petitioner’s application, inter alia, for a temporary stay of arbitration. The petitioner demonstrated that there was an issue of fact as to

p. 721
whether the respondent used reasonable efforts to ascertain the identity of the owner and/or driver of the alleged uninsured vehicle (see, Matter of Tri-State Consumer Ins. Co. v Dabush, 264 AD2d 848 ; Matter of American Sec. Ins. Co. v Calarco, 85 AD2d 693 ). Accordingly, the matter must be remitted to the Supreme Court, Richmond County, for an evidentiary hearing on that issue. Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.

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