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`Short Form Order
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`Index No. 62083 8/2017
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`SUPREME COURT - STATE OF NEW YORK I
`I.A.S. PART 50 - COUNTY OF SUFFOLK
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`I
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`P R E S E N T:
`
`Hon. Martha L. Luft
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`Acting Justice Supreme Court
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`DECISION AND ORDER
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`TRAVELERS PERSONAL INSURANCE
`COMPANY,
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`x
`
`001 — MG
`Mot. Seq, No.
`Orig. Return Date: 11/29/2017
`Mot. Submit Date: 01/09/2018
`
`Petitioner,
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`PETITIONER’S ATTORNEY
`
`-against-
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`DOROTHY FORSTELL, INTEGON
`CASUALTY INSURANCE‘COMPANY,
`REGINA SANTOS MALDONADO, BESSI
`MALDONADO,
`
`Respondents. I
`- x
`
`'
`Vincent L. Pirro, Esq.
`Law Offices of Aloy Ibuzor
`PO. Box 2904
`,
`
`V
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`Hartford, CT 06104—2904
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`7 RESPONDENT’S ATTORNEY
`' Rappaport, Glass, Levine & Zullo
`Attorneys for Respondent Dorothy Forstell
`1355 Motor Parkway
`Islandia, NY 11749
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`, ADDITIONAL RESPONDENTS '
`Integon Casualty Insurance Company
`P. O Box 1623
`
`Winston Salem, NC. 27102-1623
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`Regina Santos Maldonado
`122 Green Street
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`Warrenton, VA 20186
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`Bessi Maldonado
`
`104 Irving Avenue
`Wyandanch, NY 11798
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`AMERICAN ARBITRATION
`ASSOCIATION
`*
`
`120 Broadway, 11th Floor '
`- New York, NY 10271
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`RECEIVED NYSCEF: 05/24/2018
`R«.C«.IV«.D \IYSCEF: 05/24/2018
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`Travelers Personal Insurance Co. v. Dorothy Forstell, et a1.
`Index No. 620838/2017
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`LUFT, J.
`Page 2
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`Upon the e-filed documents numbered 1 through 16,
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`it is hereby
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`ORDERED, that petitioner’s application for an order staying the arbitration demanded by
`respondent, Dorothy Forstell, under petitioner’s uninsured motorist endorsement is granted
`insofar as petitioner’s request for a temporary stay of arbitration pending a hearing to determine
`whether additional respondents Bessi Maldonado and Regina Santos Maldonado were uninsured
`is hereby granted; and it is further
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`ORDERED, that Integon Casualty Insurance Company, Regina Santos Maldonado and
`Bessi Maldonando are hereby named additional respondents and petitioner is directed to serve a
`copy of this order with notice of entry, together with copies of all papers previously served in this
`proceeding upon them within twenty (20) days of such entry; and it is further
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`ORDERED, that petitioner is hereby directed to serve a copy of this order with notice of
`entry upon both the clerk of the court to note the amendment of the caption to include the
`additional respondents and upon the calendar clerk of this court within twenty (20) days of such
`entry; and it is further
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`ORDERED, that the parties shall appear for a conference at 9:30 am on July 5, 2018 in
`Part 50 Supreme Court Suffolk County, 1 Court Street, Riverhead, NY to schedule limited
`discovery and a hearing in accordance herewith; and it is further
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`ORDERED, that at least ten days prior to the above scheduled conference date the parties
`shall mutually exchange copies of the motor vehicle liability policies in effect on the date of the
`subject accident, including all endorsements and all documents and communications concerning
`the cancellation of such policies, if any.
`
`This is a proceeding pursuant to CPLR article 75 in which the petitioner, Travelers
`Personal Insurance Company (“Travelers”), seeks an order pursuant to CPLR §7503 staying the
`uninsured motorist arbitration demanded by respondent Dorothy Forstell (“Forstell”). This
`proceeding arises from a motor vehicle accident in which Forstell alleges she was seriously
`injured as the result of the negligent operation of a vehicle operated by additional respondent,
`Bessi Maldonado, an unlicensed sixteen-year old driver, and owned by additional respondent,
`Regina Santos Maldonado. Travelers contends that Forstell’s uninsured motorist coverage was
`not triggered because the Maldonado vehicle was insured. More specifically, Travelers contends
`that the cancellation of the Maldonado policy by additional respondent Integon Casualty
`Insurance Company (“Integon”) was ineffective under Virginia law.
`
`As the party seeking to stay arbitration pursuant to the uninsured motorist endorsement
`_
`of its insured’s policy, petitioner bore the burden of coming forward with evidence establishing
`that the alleged offending vehicle was insured by another insurance carrier at the time of the
`accident. See Allstate Ins. Co. v Esposito, 15 AD3d 648, 791 NYS2d 125 (2d Dept 2005). The
`Second Department has very recently reiterated this well-established principle by holding that the
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`Travelers Personal Insurance Co. V. Dorothy Forstell, ct a1.
`Index No. 62083 8/2017
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`LUFT, J.
`Page 3
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`party seeking a stay of arbitration “has the burden of showing the existence of sufficient
`evidentiary facts to establish a preliminary issue which would justify the stay. (citations
`omitted)” Government Employees Insur. Co. v Tucci, 157 AD3d 679, 69 NYS3d 330 (2d Dept.
`2018). Upon such a showing, the burden then shifts to the party opposing the application to rebut
`the primafacie showing. If a triable issue of fact is raised, it is then determined by the court in a
`framed issue hearing, and a temporary stay pending such hearing is appropriate. Id.
`
`In many cases, the petitioner meets its burden of coming forward with evidence that the
`vehicle in question was insured by producing a Department of Motor Vehicles FS-25 form or a
`Motor Vehicle 104A Form that indicates the code of an insurance company. State Wide Ins. Co.
`vLibecci, 104 AD2d 893, 895, 480 NYS2d 510, 511 (2d Dept. 1984); see, e. g., Lumbermen’s
`Mut. Cas. Co. v Beliard, 256 AD2d 579, 682 NYS2d 430 (2d Dept. 1998); Eagle Ins. Co. v
`Sadiq, 237 AD2d 605, 655 NYS2d 601 (2d Dept. 1997); Eagle Insur. C0. VPatrik, 233 AD2d
`327, 649 NYS2d 189 (2d Dept. 1996); cf Government Empls. Ins. Co. v Williams-Staly, 288
`AD2d 471 , 733 NYS2d 74 (2d Dept. 2001) (petitioner could have met its burden by proffering a
`copy of the police accident report reciting the insurance code). In the present case, the police
`accident report indicates the insurance code of the Maldonado vehicle as “000.”
`
`However, through Forstell’s efforts, in the course of pursuing a lawsuit for damages she
`allegedly suffered as a result of the accident in question, information came to light concerning an
`insurance policy for the Maldonado vehicle through Integon. Integon provided a copy of a
`cancellation notice based upon nonpayment of the premium, which resulted in Integon canceling
`the policy effective November 4, 2016, approximately seven months before the date of the
`accident on June 1, 2017.
`
`Petitioner asserts that Integon’s notice of cancellation was invalid in that it failed to
`comply with the notice provision of the governing statute. Because the vehicle in question was
`registered in the Commonwealth of Virginia, the Virginia statute applies. The Code of Virginia
`§38.2—2212 B provides, in pertinent part:
`
`No cancellation or refusal to renew by an insurer of a policy of motor vehicle insurance
`shall be effective unless the insurer delivers or mails to the named insured at the address
`shown in the policy a written notice of the cancellation or refusal to renew, or the insurer
`delivers such notice electronically to the address provided by the named insured. The
`notice shall:
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`2. State the effective date of the cancellation or refusal to renew. The effective
`date of cancellation or refusal to renew shall be at least 45 days after mailing or delivering
`to the insured the notice of cancellation or notice of refusal to renew. However, when the
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`NYSCEF DOC. NO. 17
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`NYISQEF‘DOC. . NO. 17
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`Travelers Personal Insurance Co. v. Dorothy Forstell, et a1.
`Index No. 62083 8/2017
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`LUFT, J."
`Page 4
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`policy is being canceled or not renewed for the reason set forth in subdivision 2 of
`subsection D of this section the effective datemay be less than 45 days butat least 15
`daysfrom the date of mailing or delivery.
`-
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`Subsection 2 of Subsection D of that above-cited section refers to nonpayment of premiums.
`
`Petitioner asserts that the required fifteen days’ notice was not provided, in that the
`notice of cancellation is dated fourteen days prior tothe cancellation date. The date of the notice
`is “10/11/2016" and the cancellation date is “10/26/2016.” Certainly October 26 is exactly fifteen
`days after October 11. However, upon more careful examination, and, as noted in the October 2,
`2017 letter from Travelers to Forstell’s attorney, annexed as Exhibit “D” to Forstell’s opposition
`papers, the cancellation was to take place at “12:01 AM on 10/26/2016," meaning one minute
`after midnight on 10/25/2016. Thus, the notice provided was fourteen days and one minute of the
`fifteenth day, rather than a full fifteen days, as required by the statute.
`
`In contrast to the situationIn Allstate Ins. Co. v Esposito, 15 AD3d 648, 791 NYS2d 125
`(2d Dept. 2005), relied upon by respondent, petitioner has presented some proof undermining the '
`validity of Integon’s disclaimer of coverage. Thus, a triable issue of fact as to whether the
`Maldonado vehicle was insured at the time of the accident has been raised, which will be
`determined by this court in a framed issue hearing.
`
`ENTER
`
`Date: May '23 , 2018
`Riverhead, New York
`
`
`
`MAR _HA L. LUFT, A.J.S.C.
`
`Law
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`__FINAL DISPOSITION
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`\AON-FINAL DISPOSITION-
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