The following numbered papers were read on this petition: NYSCEF Document Numbers 1-28.

Upon the foregoing papers, the Court having heard oral argument on the record, and due deliberation having been had thereon, the within CPLR 7503 (c) petition in a special proceeding seeking a stay of uninsured motorist (UM) insurance arbitration is determined as follows.

" 'The 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' (Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680 [2018] [internal quotation marks omitted]; see Matter of AutoOne Ins. Co. v Umanzor, 74 AD3d 1335, 1336 [2010]). 'Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing' (Matter of [*2]Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865 [2015]). 'Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue' (Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1003 [2013])." (Matter of Allstate Ins. Co. v Robinson, 188 AD3d 1186, 1188-1189 [2d Dept 2020.)

Here, Petitioner Government Employees Insurance Company ("GEICO") demonstrated that Respondent filed a request for UM arbitration pertaining to a June 4, 2024 motor vehicle accident on Warwick Street, in Brooklyn, and that it served the petition herein within the requisite 20 days. Petitioner alleged:

3. Petitioner received a Demand for Arbitration filed by the attorneys for the respondent on or about 9/20/2025.^[FN1]

4. This demand refers to an insurance policy issued by the petitioner providing uninsured motorist benefits. (A copy of the Demand for Arbitration is annexed as Exhibit "A").

5. The Demand for Arbitration alleges that the respondent sustained injuries in an accident on June 4, 2024, allegedly involving an uninsured motorist. Pursuant to the MV104 signed by respondent, DMOORE ENTERPRISES LLC was the owner of the offending vehicle, a 2013 HINO Truck bearing plate number ZWK7935. (A copy of the MV-104 accident report is annexed as Exhibit "B").

6. It is respectfully submitted that the respondent has failed to submit sufficient proof that the vehicle allegedly involved in this accident was, in fact, "uninsured" and such proof is a condition precedent to arbitration under the endorsement under which claim is made. In re Rosenbaum, 11 NY2d 310, 229 N.Y.S.2d 375 (1962); In re General Insurance Company, 100 AD2d 905, 474 N.Y.S.2d 792 (2d Dept. 1984).

7. A plate search conducted of the Pennsylvania Department of Motor Vehicle records further confirms that the offending vehicle was owned by DMOORE ENTERPRISES LLC and was insured by United Financial Casualty Company (hereinafter "PROGRESSIVE"). (See, Exhibit "C").

8. Upon information and belief, DMOORE ENTERPRISES LLC, contends that they sold the 2013 HINO Truck. This contention directly contradicts the records maintained by the Pennsylvania Department of Motor Vehicle. DMOORE ENTERPRISES LLC has failed to provide any evidence to support the contention that they are/were no longer the owner of the vehicle involved in the subject accident.

9. On October 19, 2024, PROGRESSIVE issued a letter disclaiming coverage for the June 6, 2024 loss involving the respondents. In said letter, they refer to a policy issued to an entity called MOOVERS INC. The disclaimer concedes that there was a valid insurance policy issued to MOOVERS INC. from 11/30/2023 to 11/30/2024, during which the subject accident occurred. However, their disclaimer of coverage is based on the grounds that the 2013 HINO Truck bearing plate number ZWK7935 was not insured under that policy. (See Exhibit "D").

10. Progressive Insurance had failed to come forward with any evidence to support their assertions that they did not insure the 2013 HINO Truck bearing plate number ZWK7935 [*3]that was involved in the subject accident.

11. Pursuant to the aforementioned records maintained by the Pennsylvania Department of Motor Vehicle records the 2013 HINO Truck bearing plate number ZWK7935 was owned by DMOORE ENTERPRISES LLC and was insured by United Financial Casualty Company also known as Progressive Insurance.

12. The only documentation submitted thus far by Progressive Insurance is a disclaimer of coverage under a policy of insurance issued to Moovers Inc. which pursuant to the evidence before the Court, at present, was not the owner of the subject vehicle. (NYSCEF Doc No. 1 ¶¶ 3-12.)

Also alleged is, "The petitioner, therefore, submits that the respondent has not fully complied with the condition precedent, to wit, proof that the offending vehicle was in fact 'uninsured', and may not proceed to arbitration. In the alternative, it is requested that arbitration be temporarily stayed pending a hearing on the issue of whether the offending vehicle was indeed 'uninsured' on the date of the accident, and that be joined as additional respondents to this proceeding." (Id. ¶ 13).

Respondents Alejandro Giron Nunez and Evelyn Perez de Giron did not submit opposition. Other Respondents did. Progressive Casualty Insurance Company ("Progressive") asserted that it did not insure the Hino truck involved in an accident on June 4, 2024. While United Financial Casualty Company, a Progressive company, did issue a commercial insurance policy to DMoore Enterprises LLC, the policy was not in effect on June 4, 2024. And, while Progressive did insure a Hino truck for Moovers Inc., it was for a truck with the New York license plate 39914NE, not the plate listed by Nunez and de Giron on their submitted MV-104 report. (See NYSCEF Doc No. 15.)

Respondent Moovers Inc. asserted that on June 4, 2024, it owned one truck, bearing New York plate 39914NE, which was booked for a junk removal job in Central Islip.

As per the case law cited above, Petitioner, who has sought a stay of UM arbitration, has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay. Petitioner relies on documents received from the Pennsylvania Department of Transportation ^[FN2] to show that the tortfeasor Hino truck was insured on the date of the accident, June 4, 2024. Reviewing these documents, however, establishes just the opposite. Nothing in the records shows that the Hino truck was insured on that date (see NYSCEF Doc No. 5). The only reference to insurance in them appears on a Pennsylvania Department of Transportation Applicant Summary Statement stating that the subject truck was insured with United Financial Casualty Company from May 31, 2023-May 31, 2024. This period of coverage was outside the date of the accident. This actually is consistent with the information provided by Respondent Progressive Casualty Insurance Company.

Petitioner's petition attempts to place the burden of proof on Respondents, primarily Progressive, to come forward with evidence to support the assertion that the Hino truck bearing plate number ZWK7935 that was involved in the subject accident, was not insured. This misplaces the burden of proof. Under case law, it is the burden of Petitioner, who seeks the stay of UM arbitration, to show the existence of sufficient evidentiary facts in admissible form to [*4]establish a preliminary issue which would justify the stay (see Government Empls. Ins. Co. v Enriquez, 231 AD3d 724, 725 [2d Dept 2024]; Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680 [2d Dept 2018]; Matter of AutoOne Ins. Co. v Umanzor, 74 AD3d 1335, 1336 [2d Dept 2010]). Petitioner failed to submit any evidence tending to show that the truck was insured. "[I]t was not entitled to a framed-issue hearing, as it failed to meet its prima facie burden justifying a stay" (Matter of Allstate Fire & Cas. Ins. Co. v Rios, — AD3d —, 2026 NY Slip Op 00246, *2 [2d Dept 2026]).

Petitioner also seeks discovery from Respondent in the event the matter proceeds to arbitration. It asserted:

15. Finally, under the petitioner's policy, the respondent is required to furnish the petitioner with a copy of all relevant medical records and authorizations, and to submit to an examination under oath and physical examinations prior to proceeding to arbitration. (See, page 14, paragraphs 2 and 3^[FN3] of the petitioner's policy entitled "Conditions", annexed as Exhibit "E").

16. Accordingly, if it is determined after a hearing that the respondent is entitled to proceed to arbitration under the petitioner's policy, it is requested that respondent be directed to furnish petitioner with the disclosure required under the insurance contract. (NYSCEF Doc No. 1 ¶¶ 15-16.)

However, Petitioner has failed to inform the Court when the claim for UM benefits was submitted. While it provided the date that the request for arbitration was received, nothing here evidences whether a UM claim was submitted recently or earlier in time. The significance is that if the claim was submitted sufficiently earlier in time, then Petitioner has failed to demonstrate that it sought discovery which went unprovided. When there is ample time to obtain discovery of a UM claim and the insurer fails to seek it, it may not obtain it thereafter via a CPLR Article 75 proceeding to stay arbitration (see Matter of Government Empls. Ins. Co. v Eser, 215 AD3d 837 [2d Dept 2023]; Matter of Encompass Indem. Co. v Rich, 131 AD3d 476, 479 [2d Dept 2015]; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713 [2d Dept 2006]; Matter of Government Empls. Ins. Co. v Rosenfarb, 306 AD2d 478 [2d Dept 2003]; Matter of Allstate Ins. Co. v Miles, 280 AD2d 472 [2d Dept 2001]; Matter of Allstate Ins. Co. v Faulk, 250 AD2d 674 [2d Dept 1998]; Matter of Allstate Ins. Co. v Urena, 208 AD2d 623 [2d Dept 1994]).

Not having established that it sought discovery which was not provided, that branch of the petition seeking to stay arbitration for the purposes of obtaining discovery must be denied.

Accordingly, it is hereby ORDERED and ADJUDGED that the petition herein by GEICO seeking a CPLR 7503 (c) stay of UM insurance arbitration requested by Respondents Alejandro Giron Nunez and Evelyn Perez de Giron is DENIED, and the special proceeding is dismissed. The Clerk shall enter judgment accordingly. The arbitration request filed by Respondents Alejandro Giron Nunez and Evelyn Perez de Giron may proceed to adjudication.