Matter of Autoone Ins. Co. v Santos (2007 NY Slip Op 50102(U))

Matter of Autoone Ins. Co. v Santos

2007 NY Slip Op 50102(U) [14 Misc 3d 1220(A)]

Decided on January 12, 2007

Supreme Court, Suffolk County

Mayer, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

ORDERED that the request by the Petitioner, AUTOONE INSURANCE COMPANY ("AUTOONE"), for a permanent stay of arbitration in this matter is denied; it is further

ORDERED that AUTOONE'S request for a temporary stay in this matter pending a framed issue hearing is hereby granted; it is further

ORDERED that the Proposed Additional Respondents, KILMANJARO, INC. ("KILMANJARO"), Tijani A. Saeed ("SAEED") and AMERICAN TRANSIT INSURANCE COMPANY ("AMERICAN TRANSIT") are added as Additional Respondents to the caption and body of this proceeding; it is further

ORDERED that a conference shall be held with the Court as to the status of this matter, such conference to be conducted on January 30, 2007 at 9:30 a.m., in Chambers for the undersigned, located at One Court Street, Riverhead, New York. At the time of the conference, counsel for the Petitioner, Respondent and Additional Respondents shall appear with all documentary evidence they intend to submit to the Court at the time of an evidentiary hearing in this matter, as well as the dates, times and availability of any live witnesses the parties intend to produce at the time of said hearing on issues of coverage and discovery, which shall be scheduled at the conference; and it is further [*2]

ORDERED that, within (ten) 10 days of the date of this Order, counsel for the Petitioner shall serve a copy of this Order upon Respondent(s) and Additional Respondent(s).

In this matter, Respondent, Philip Santos, Jr., was allegedly injured as a result of a motor vehicle accident on December 3, 2005. The related police accident report shows that at the time of the accident, the alleged offending vehicle was owned by KILMANJARO and operated by SAEED. The petitioner contends that a Department of Motor Vehicles Expansion Report shows that the alleged offending vehicle was insured by AMERICAN TRANSIT at the time of the accident. In opposition, AMERICAN TRANSIT alleges that its policy of coverage for the KILMANJARO vehicle was cancelled on September 25, 2005, prior to the subject accident; however, the petitioner raises questions as to whether or not such cancellation complied with 12-point type face requirements of VTL §313.

The requirement that 12-point type face be used is unambiguous and absolute, thereby indicating that there must be strict compliance with the statutory condition (Barzilay v Gheida, 70 AD2d 942, 417 NYS2d 782 [2d Dept 1979]; Kaplan v Travelers Ins. Co., 205 AD2d 501, 612 NYS2d 658 [2d Dept 1994]). Accordingly, a temporary stay of arbitration is warranted pending a hearing as to whether or not the cancellation and disclaimer were valid and whether AUTOONE is entitled to a permanent stay of arbitration pursuant to CPLR 7503(c) (Allstate Ins. Co. v Moore, 228 AD2d 437, 643 NYS2d 419 [2d Dept 1996]; Allstate Ins. Co. v. Farina, 69 AD2d 901, 415 NYS2d 895 [2d Dept 1979]). Any issues concerning discovery shall be addressed at the time of the January 30, 2007 conference.