The following numbered papers were read on this motion: NYSCEF Document Numbers 1-34.

In this special proceeding to permanently stay uninsured motorist insurance arbitration, Petitioner GEICO moves to confirm the report of JHO Loren Baily-Schiffman with respond to insurance coverage on the offending vehicle causing a motor vehicle accident in which Respondent Ailani Medina claims to have been injured.

Where there is a factual issue of uninsured motorist coverage, the insurer seeking a stay of uninsured motorist arbitration bears the initial burden of proving that the alleged offending vehicle was insured by another insurance carrier (see Government Empls. Ins. Co. v McFarland, 286 AD2d 500 [2d Dept]), but the insured who filed for arbitration bears the ultimate burden of establishing that the loss sustained was caused by an uninsured vehicle (see Matter of Progressive Specialty Ins. Co. v Lubeck, 111 AD3d 947 [2d Dept 2013]).

At the framed issue hearing conducted by JHO Loren Baily-Schiffman, to whom the matter was referred to for a report, Respondents failed to rebut the prima facie case made out by [*2]Petitioner that the offending vehicle was insured by Hugo Insurance. JHO Baily-Schiffman concluded that Respondents failed to meet their burden of proof that the offending vehicle was not insured:

A plate search from Pennsylvania for the offending vehicle (NYSCEF Document #5) indicates that the vehicle was insured by Hugo Insurance by a policy effective from July 30, 2024 until January 30, 2025. The subject accident occurred on January 22, 2025, within the effective dates of the policy. Nothing submitted indicates that the policy was cancelled prior to its termination date. However, the written opposition to the Petition includes a letter from First Acceptance Insurance Co. (NYSCEF Document # 12) denying coverage on the basis that the loss occurred outside the policy effective dates. The policy number on this letter is [redacted] perhaps indicating that the vehicle was insured by Hugo Insurance Co. There then appears to be a factual conflict between the denial letter and the plate search which provides a policy expiration date of January 30, 2025, after the date of the subject accident. As no one appeared on the hearing date to explain this factual conflict, the JHO concludes that the proposed additional respondents have failed to meet their burden of proof that the offending vehicle was not insured.

It was stated in DeStefano v Law Offs. of William Pager, 232 AD3d 788, 789 [2d Dept 2024]:

"CPLR 4403 provides that 'upon the motion of any party . . . , the judge required to decide the issue may confirm or reject, in whole or in part, . . . the report of a referee to report' " (U.S. Bank N.A. v Maher, 219 AD3d 1372, 1374 [2023] [alterations omitted], quoting CPLR 4403). "The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" (Citimortgage, Inc. v Kidd, 148 AD3d 767, 768 [2017]; see U.S. Bank N.A. v Maher, 219 AD3d at 1374). Nonetheless, "[t]he referee's findings and recommendations are advisory only and have no binding effect on the court, which remains the ultimate arbiter of the dispute" (Citimortgage, Inc. v Kidd, 148 AD3d at 768).

The Court finds that JHO Baily-Schiffman's conclusions are well supported by the record.

Accordingly, it is hereby ORDERED that Petitioner's motion to confirm the report of JHO Baily-Schiffman is GRANTED. The Court adopts the JHO's finding that the offending vehicle was insured. There being no further issues of fact to determine, the Court further ORDERS that Petitioner's petition for an order pursuant to CPLR 7503 (c) permanently staying uninsured motorist insurance arbitration commenced by Respondent Ailani Medina is GRANTED; and it is hereby ORDERED that the uninsured motorist insurance arbitration commenced by Respondent Ailani Medina against Petitioner GEICO with respect to a motor vehicle accident occurring on January 22, 2025 be and is permanently stayed.

The Clerk shall issue judgment in accordance with the foregoing upon presentation of a proposed judgment in proper form.

The foregoing constitutes the decision and order of this Court.