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FILED: WESTCHESTER COUNTY CLERK 02/07/2019 04:49 PM INDEX NO. 51830/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/07/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
----------------------------------------------------------------------X
In the Matter of the Application of GEICO INSURANCE
COMPANY to Stay Arbitration, Index No.: 51830/2019
Petitioner, AFFIRMATION IN
PARTIAL OPPOSITION
-against-
ANTHONY NEWMARK, RTD: March 13, 2019
Respondent,
Originally Filed for
-and-
March 8, 2019.
JAMES TURNER HAYES AND COUNTRY-WIDE Hon. Lawrence H. Ecker
INSURANCE COMPANY,
Proposed Additional Respondents.
-----------------------------------------------------------------------X
BRIAN R. SACHS, an attorney duly licensed to practice law in the State of New York,
affirms the following under penalty of perjury:
1. That I am a member at the law firm of THE SACHS FIRM, P.C., attorneys for the
Respondent, and I am fully
familiar with all the pleadings and proceedings heretofore had herein.
2. Petitioner's application to permanently stay
arbitration should not be granted
based upon the following grounds.
3. This claim arises from a motor vehicle accident of August 15, 2018. As noted in
the Petitioner's application (and the police report annexed thereto), the Respondent, ANTHONY
run"
NEWMARK, was a passenger in a motor vehicle that was struc1dimpacted by a "hit and
driver. The fleeing
motor vehicle (allegedly insured by the Proposed Third Party Defendant,
Country-Wide Insurance and operated by James Turner) was believed to have been identified and
a license plate number was recorded. However, it is important to note that this identification was
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FILED: WESTCHESTER COUNTY CLERK 02/07/2019 04:49 PM INDEX NO. 51830/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/07/2019
made NOT by the Respondent, but by another party. The Petitioner is not in possession of any
"fleeing"
photographs, license numbers or identifying markers for the vehicle.
3. Additionally, County-Wide Insurance, through it's investigations, reviews and
claims administrators
(including but not limited to the current representative assigned, Kyaw Tun
"non-involvement"
Nyein), has denied all coverage in this matter citing of their insured.
we were advised that this is a case mistaken -
Specifically, of identity in that the Country-Wide
vehicle and driver were not at the scene on the date in question, did not hit another vehicle, and
were not involved in this incident.
4. It is conceded that the Petition herein was filed in a timely matter and it is
therefore requested that this matter be resolved on the merits. To wit, a Framed issue
Hearing
should be set down to determine the involvement of the proposed third parties.
5. Any Order granting Petitioner's application at this stage leaves the Respondent
facing the possibility of no insurance protection, despite having valid Uninsured Motorist
coverage (as confirmed in the pending Petition), while bearing no liability or responsibility for
the accident or the policy issues/decisions surrounding the Country-Wide vehicle.
alternative"
6. The appropriate remedy, as suggested in "the application of the
Petitioner, is to join the Proposed Third Party Respondents to the claim and set this matter down
for an immediate Framed Issue
- to determine involvement of the Country-Wide
Hearing any
vehicle.
7. If, at the end of said hearing, GOVERNMENT EMPLOYEES INSURANCE
COMPANY is required to maintain/provide Uninsured Motorist benefits and coverage,
Respondent does not object to providing additional discovery (i.e.: appearing for an Examination
Under Oath or for additional Independent Medical Examinations) as per the Court's written
directive.
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NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/07/2019
8. In conclusion, it should be noted that, despite Petitioners claim (alleging that
Respondent "failed to furnish sufficient evidence to support his allegations that the adverse
vehicle was uninsured"), Respondent has provided evidence of a disclaimer by the only known
carrier for the potentially adverse vehicle. If the alleged adverse vehicle was, in fact, not
involved (as asserted by Country-Wide), then the Uninsured Motorist Vehicle Benefits afforded
under the GOVERNMENT EMPLOYEES INSURANCE COMPANY (GEICO) Policy would
apply and this matter should proceed to UM arbitration with the American Arbitration
Association.
WHEREFORE, it is respectfully requested that the Petition be partially denied, the
Proposed Additional Respondents be joined herein, and this matter be ordered to proceed to a
Framed Issue Hearing forthwith.
Dated: Huntington Station, NY
February 7, 2019
Brian R. Sachs
To: Law Office of Bryan M. Kulak
for Petitioner
Attorney
90 Crystal Run Road; Suite 409
Middletown, New York 10941
Attn: Jenna Fredericks, Esq.
845-703-1180
James Turner Hayes
Proposed Additional Respondent
180 Parkhill Ave, 6E
Staten Island, New York 10304
Country-Wide Insurance Company
Proposed Additional Respondent
40 Wall Street; 13th Floor
New York, New York 10005
Claim: 339776
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Preview
FILED: WESTCHESTER COUNTY CLERK 02/07/2019 04:49 PM INDEX NO. 51830/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------------------------------X In the Matter of the Application of GEICO INSURANCE COMPANY to Stay Arbitration, Index No.: 51830/2019 Petitioner, AFFIRMATION IN PARTIAL OPPOSITION -against- ANTHONY NEWMARK, RTD: March 13, 2019 Respondent, Originally Filed for -and- March 8, 2019. JAMES TURNER HAYES AND COUNTRY-WIDE Hon. Lawrence H. Ecker INSURANCE COMPANY, Proposed Additional Respondents. -----------------------------------------------------------------------X BRIAN R. SACHS, an attorney duly licensed to practice law in the State of New York, affirms the following under penalty of perjury: 1. That I am a member at the law firm of THE SACHS FIRM, P.C., attorneys for the Respondent, and I am fully familiar with all the pleadings and proceedings heretofore had herein. 2. Petitioner's application to permanently stay arbitration should not be granted based upon the following grounds. 3. This claim arises from a motor vehicle accident of August 15, 2018. As noted in the Petitioner's application (and the police report annexed thereto), the Respondent, ANTHONY run" NEWMARK, was a passenger in a motor vehicle that was struc1dimpacted by a "hit and driver. The fleeing motor vehicle (allegedly insured by the Proposed Third Party Defendant, Country-Wide Insurance and operated by James Turner) was believed to have been identified and a license plate number was recorded. However, it is important to note that this identification was 1 of 3 FILED: WESTCHESTER COUNTY CLERK 02/07/2019 04:49 PM INDEX NO. 51830/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/07/2019 made NOT by the Respondent, but by another party. The Petitioner is not in possession of any "fleeing" photographs, license numbers or identifying markers for the vehicle. 3. Additionally, County-Wide Insurance, through it's investigations, reviews and claims administrators (including but not limited to the current representative assigned, Kyaw Tun "non-involvement" Nyein), has denied all coverage in this matter citing of their insured. we were advised that this is a case mistaken - Specifically, of identity in that the Country-Wide vehicle and driver were not at the scene on the date in question, did not hit another vehicle, and were not involved in this incident. 4. It is conceded that the Petition herein was filed in a timely matter and it is therefore requested that this matter be resolved on the merits. To wit, a Framed issue Hearing should be set down to determine the involvement of the proposed third parties. 5. Any Order granting Petitioner's application at this stage leaves the Respondent facing the possibility of no insurance protection, despite having valid Uninsured Motorist coverage (as confirmed in the pending Petition), while bearing no liability or responsibility for the accident or the policy issues/decisions surrounding the Country-Wide vehicle. alternative" 6. The appropriate remedy, as suggested in "the application of the Petitioner, is to join the Proposed Third Party Respondents to the claim and set this matter down for an immediate Framed Issue - to determine involvement of the Country-Wide Hearing any vehicle. 7. If, at the end of said hearing, GOVERNMENT EMPLOYEES INSURANCE COMPANY is required to maintain/provide Uninsured Motorist benefits and coverage, Respondent does not object to providing additional discovery (i.e.: appearing for an Examination Under Oath or for additional Independent Medical Examinations) as per the Court's written directive. 2 of 3 FILED: WESTCHESTER COUNTY CLERK 02/07/2019 04:49 PM INDEX NO. 51830/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/07/2019 8. In conclusion, it should be noted that, despite Petitioners claim (alleging that Respondent "failed to furnish sufficient evidence to support his allegations that the adverse vehicle was uninsured"), Respondent has provided evidence of a disclaimer by the only known carrier for the potentially adverse vehicle. If the alleged adverse vehicle was, in fact, not involved (as asserted by Country-Wide), then the Uninsured Motorist Vehicle Benefits afforded under the GOVERNMENT EMPLOYEES INSURANCE COMPANY (GEICO) Policy would apply and this matter should proceed to UM arbitration with the American Arbitration Association. WHEREFORE, it is respectfully requested that the Petition be partially denied, the Proposed Additional Respondents be joined herein, and this matter be ordered to proceed to a Framed Issue Hearing forthwith. Dated: Huntington Station, NY February 7, 2019 Brian R. Sachs To: Law Office of Bryan M. Kulak for Petitioner Attorney 90 Crystal Run Road; Suite 409 Middletown, New York 10941 Attn: Jenna Fredericks, Esq. 845-703-1180 James Turner Hayes Proposed Additional Respondent 180 Parkhill Ave, 6E Staten Island, New York 10304 Country-Wide Insurance Company Proposed Additional Respondent 40 Wall Street; 13th Floor New York, New York 10005 Claim: 339776 3 of 3