December 18, 2007

Matter of Hanover Ins. Co. v Etienne (2007 NY Slip Op 10155)

Headnote

The main issue in this case was whether the respondents had satisfied the conditions precedent of coverage under an insurance policy in order to arbitrate their claim seeking coverage for uninsured motorist benefits. The court held that the respondents had failed to file a sworn statement with the insurance company within 90 days of the alleged hit-and-run accident, as required by the uninsured motorist endorsement of the insurance policy. The Supreme Court's decision to deny the petition for a permanent stay of arbitration was reversed, and the petition to permanently stay the arbitration was granted. The court also noted that the fact that the insurance company had received some notice of the accident through an application for no-fault benefits did not negate the breach of the policy requirement. The remaining contention of the petitioner was not addressed in light of the court's determination.

Reported in New York Official Reports at Matter of Hanover Ins. Co. v Etienne (2007 NY Slip Op 10155)

Matter of Hanover Ins. Co. v Etienne

2007 NY Slip Op 10155 [46 AD3d 825]

December 18, 2007

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 13, 2008

In the Matter of Hanover Insurance Company, Appellant,
v
Lucille Etienne et al., Respondents.

—[*1] Goldman & Grossman, New York, N.Y. (Jay S. Grossman and Eleanor R. Goldman of counsel), for appellant.

Jeffrey H. Schwartz, New York, N.Y., for respondents.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Held, J.), dated June 26, 2007, which denied the petition.

Ordered that the order is reversed, on the law, with costs, and the petition to permanently stay the arbitration is granted.

The Supreme Court erred in denying the petition for a permanent stay of arbitration since the respondents failed to file a sworn statement with the petitioner insurance company within 90 days of the alleged hit-and-run accident, in accordance with the requirement of the uninsured motorist endorsement of the subject insurance policy. The respondents thus failed to satisfy a condition precedent of coverage under the policy, and are not entitled to arbitrate their claim seeking coverage (see Matter of Eveready Ins. Co. v Mesic, 37 AD3d 602 [2007]; Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480, 481 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636, 637 [1995]). “Moreover, the fact that the petitioner received some notice of the accident by way of an application for no-fault benefits did not negate the breach of the policy requirement” (Matter of Eveready Ins. Co. v Mesic, 37 AD3d at 603; see Matter of Allstate Ins. Co. v Estate of Aziz, 17 AD3d 460, 461 [2005]; Matter of American Home Assur. Co. v Joseph, 213 AD2d 633 [1995]). [*2]

The petitioner’s remaining contention need not be addressed in light of our determination. Ritter, J.P., Florio, McCarthy and Dickerson, JJ., concur.