Preview
FILED: QUEENS COUNTY CLERK 03/24/2023 08:24 AM INDEX NO. 706270/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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In the Matter of the Application for an Order Index No.
Staying Arbitration Between
PROGRESSIVE CASUALTY INSURANCE VERFIED PETITION
COMPANY
Petitioner,
-against-
MARISELA SANCHEZ,
Respondent,
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GAIL S. KARAN, an attorney admitted to practice law in the Courts of this State, affirms
under the penalty of perjury and pursuant to Rule 2106 of the Civil Practice Law and Rules that
the following facts are true:
1. I am a partner with the firm of MORRIS DUFFY ALONSO FALEY & PITCOFF,
attorneys for the Petitioner, PROGRESSIVE CASUALTY INSURANCE COMPANY and am
authorized to commence this proceeding and submit the within Petition.
2. The Petitioner is a licensed cooperation authorized to do business in the State of New
York and maintains a place of business at 725 Broadway, Albany, New York 12201.
3. Petitioner, PROGRESSIVE, by its attorneys, complaining of the Respondent,
respectfully alleges the following:
4. The Petitioner, PROGRESSIVE, underwritten by Progressive Casualty Insurance
Company, issued to Marisela Sanchez and Robert Sanchez a certain liability policy numbered
935320069 which covered a 2020 Hyundai and was effective July 5, 2020 to July 5, 2021.
5. Annexed hereto as Exhibit “A” is a copy of the MV104s pertaining to the accident.
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Police Accident Report. According to the Police Accident report, on August 7, 2020, respondent
was involved in a motor vehicle accident with another vehicle.
6. Respondent filed a Demand for SUM Arbitration, with American Arbitration
Association, (hereinafter “AAA”) dated March 2, 2023, (annexed hereto as Exhibit “B”).
Pursuant to CPLR §7503, this petition it timely, made within the twenty day time limit.
7. Pursuant to the respondents’ Demand, Respondents resides in the County of Queens.
Therefore, under CPLR § 7502(a), Petitioner is entitled to commence this proceeding in the
Supreme Court, Queens County.
8. That it appears that Respondent is proceeding and alleging claimed rights under the
Supplementary Underinsured Motorists Endorsement (annexed hereto as Exhibit “C” is a copy of
the DEC page and Policy of automobile liability insurance which Progressive Casualty Insurance
Company issued to Marisela Sanchez. Further, annexed hereto as Exhibit “D” is an affidavit from
Robert Baselice, Senior Claims Representative of Progressive Insurance Company, regarding said
policy.
9. It is respectfully submitted that Respondent has no right to proceed to arbitration on
the ground that Respondent has failed to comply with the conditions of Supplemental
Underinsurance/Uninsured Motorist Provision of the policy, a condition precedent to bringing an
SUM claim. Specifically, Respondent is required to provide authorizations to obtain all medical,
hospital, diagnostic tests/films, employment, educational, collateral source records, including all
prior and subsequent accidents/injuries. Respondent is required to submit to an Examination
Under Oath, as well as physical examinations. Additionally, counsel for respondent was advised
they were required to provide all documents pertaining to all legal actions brought as a result of
the accident/loss.
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10. These requirements are specifically set forth in the Progressive Insurance Policy,
(See Page 30 of said policy Annexed as Exhibit “C”)
1. Policy Provisions: None of the Insuring Agreements, Exclusions or Conditions of the
policy shall apply to this SUM coverage except: “Duties in Case of an Accident or Loss”, “Fraud
or Misrepresentation”; “Cancellation”, “Cancellation Refund” and “Nonrenewal: if applicable.
2. Notice and Proof of Claim: As soon as practicable, the insured or other person
making claim shall give us written notice of claim under this SUM coverage.
As soon as practicable after our written request, the insured or other person making claim
shall give us written proof of claim, under oath, if required, including full particulars of
the nature and extent of the injuries, treatment, and other details we need to determine the
SUM amount payable.
The insured and every other person making claim hereunder shall, as may reasonably be
required submit to examinations under oath by any person we name and subscribe the same.
Proof of claim shall be made upon forms we furnish unless we fail to furnish such forms
within 15 days after receiving notice of claim.
3. Medical Reports: The insured shall submit to physical examinations by physicians
we select when and as often as we may reasonably require. The insured, or in the event of
the insured’s incapacity, such as insured’s legal representative (or in the event of such
insured’s death, the insured’s legal representative of the person or persons entitled to sue
therefor) shall upon each request from us authorize us to obtain relevant medical reports
and copies of relevant records.
4. Notice of Legal Action: If the insured or such insured’s legal representative brings any
lawsuits against any person or organization legally responsible for the use of a motor
vehicle involved in the accident, a copy of the summons and complaint or other process
served in connection with the lawsuit shall be forwarded immediately to us by the insured
or the insured’s legal representative.
11. That it is submitted that Petitioner is entitled to a temporary stay of arbitration
pending the completion of discovery. There is no prejudice of any kind to Respondent by the
granting of such requested stay. Conversely and patently, substantial harm and prejudice can and
will result to PROGRESSIVE if such stay is not granted.
12. Petitioner requests that the Court direct Respondent to submit to an examination under
oath and independent medical examination(s), and to provide medical, employment and no-fault
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authorizations as required by the PROGRESSIVE insurance policy, in addition to authorizations
for the prior accidents. These discovery items are necessary in order for PROGRESSIVE to
properly evaluate Respondent’s claim and to properly defend uninsured motorist arbitration. State
Farm v. Wernick, 90 A.D.2d 519, 455 N.Y.S.2d 30 (2nd Dep’t 1982); State Farm v. Provus, 149
A.D.2d 498, 539 N.Y.S.2d 979 (2nd Dep’t 1989); Lancer Ins. Co. V. Berman, 289 A.D.2d 333, 734
N.Y.S.2d 570 (2nd Dep’t 2001). Annexed hereto as Exhibit “E” is a copy of correspondence and
Demand to respondent ‘s counsel.
13. That no previous application to this or any other Court has been made for the same or
similar relief herein.
Dated: New York, New York
March 24, 2023
____________________________
GAIL S. KARAN
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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In the Matter of the Application for an Order Index No.
Staying Arbitration Between
PROGRESSIVE CASUALTY INSURANCE VERIFICATION
COMPANY
Petitioner,
-against-
MARISELA SANCHEZ
Respondent,
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
GAIL S. KARAN, ESQ. says that: I am the attorney of record or of counsel with the
attorney of record, for Petitioner, Progressive Casualty Insurance Company. I have read the
annexed Notice of Petition and Petition and know the contents thereof and the same are true to my
knowledge, except those matters therein which are stated to be alleged on information and belief,
and as to those matters I believe them to be true. My belief, as to those matters therein not stated
upon knowledge, is based upon the following:
The reason I make this Affirmation is that said Petitioner does not presently reside in the
County were your deponent has an office. This Affirmation is being made pursuant to CPLR §
7502(a) in the proper County where said Respondent resides.
That the sources of your deponent’s information and the grounds of my belief as to the
matters so alleged herein are investigations had by the Petitioner, their agents, servants and
representatives into the subject matter hereof and correspondence relating thereto, reports of which
investigations and copies of which correspondence are in the possession of your deponent.
I affirm the foregoing statements are true under the penalties of perjury.
Dated: New York, New York
March 24, 2023
__ ___________
GAIL S. KARAN
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Preview
FILED: QUEENS COUNTY CLERK 03/24/2023 08:24 AM INDEX NO. 706270/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------x In the Matter of the Application for an Order Index No. Staying Arbitration Between PROGRESSIVE CASUALTY INSURANCE VERFIED PETITION COMPANY Petitioner, -against- MARISELA SANCHEZ, Respondent, --------------------------------------------------------------------x GAIL S. KARAN, an attorney admitted to practice law in the Courts of this State, affirms under the penalty of perjury and pursuant to Rule 2106 of the Civil Practice Law and Rules that the following facts are true: 1. I am a partner with the firm of MORRIS DUFFY ALONSO FALEY & PITCOFF, attorneys for the Petitioner, PROGRESSIVE CASUALTY INSURANCE COMPANY and am authorized to commence this proceeding and submit the within Petition. 2. The Petitioner is a licensed cooperation authorized to do business in the State of New York and maintains a place of business at 725 Broadway, Albany, New York 12201. 3. Petitioner, PROGRESSIVE, by its attorneys, complaining of the Respondent, respectfully alleges the following: 4. The Petitioner, PROGRESSIVE, underwritten by Progressive Casualty Insurance Company, issued to Marisela Sanchez and Robert Sanchez a certain liability policy numbered 935320069 which covered a 2020 Hyundai and was effective July 5, 2020 to July 5, 2021. 5. Annexed hereto as Exhibit “A” is a copy of the MV104s pertaining to the accident. 1 of 5 FILED: QUEENS COUNTY CLERK 03/24/2023 08:24 AM INDEX NO. 706270/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023 Police Accident Report. According to the Police Accident report, on August 7, 2020, respondent was involved in a motor vehicle accident with another vehicle. 6. Respondent filed a Demand for SUM Arbitration, with American Arbitration Association, (hereinafter “AAA”) dated March 2, 2023, (annexed hereto as Exhibit “B”). Pursuant to CPLR §7503, this petition it timely, made within the twenty day time limit. 7. Pursuant to the respondents’ Demand, Respondents resides in the County of Queens. Therefore, under CPLR § 7502(a), Petitioner is entitled to commence this proceeding in the Supreme Court, Queens County. 8. That it appears that Respondent is proceeding and alleging claimed rights under the Supplementary Underinsured Motorists Endorsement (annexed hereto as Exhibit “C” is a copy of the DEC page and Policy of automobile liability insurance which Progressive Casualty Insurance Company issued to Marisela Sanchez. Further, annexed hereto as Exhibit “D” is an affidavit from Robert Baselice, Senior Claims Representative of Progressive Insurance Company, regarding said policy. 9. It is respectfully submitted that Respondent has no right to proceed to arbitration on the ground that Respondent has failed to comply with the conditions of Supplemental Underinsurance/Uninsured Motorist Provision of the policy, a condition precedent to bringing an SUM claim. Specifically, Respondent is required to provide authorizations to obtain all medical, hospital, diagnostic tests/films, employment, educational, collateral source records, including all prior and subsequent accidents/injuries. Respondent is required to submit to an Examination Under Oath, as well as physical examinations. Additionally, counsel for respondent was advised they were required to provide all documents pertaining to all legal actions brought as a result of the accident/loss. 2 of 5 FILED: QUEENS COUNTY CLERK 03/24/2023 08:24 AM INDEX NO. 706270/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023 10. These requirements are specifically set forth in the Progressive Insurance Policy, (See Page 30 of said policy Annexed as Exhibit “C”) 1. Policy Provisions: None of the Insuring Agreements, Exclusions or Conditions of the policy shall apply to this SUM coverage except: “Duties in Case of an Accident or Loss”, “Fraud or Misrepresentation”; “Cancellation”, “Cancellation Refund” and “Nonrenewal: if applicable. 2. Notice and Proof of Claim: As soon as practicable, the insured or other person making claim shall give us written notice of claim under this SUM coverage. As soon as practicable after our written request, the insured or other person making claim shall give us written proof of claim, under oath, if required, including full particulars of the nature and extent of the injuries, treatment, and other details we need to determine the SUM amount payable. The insured and every other person making claim hereunder shall, as may reasonably be required submit to examinations under oath by any person we name and subscribe the same. Proof of claim shall be made upon forms we furnish unless we fail to furnish such forms within 15 days after receiving notice of claim. 3. Medical Reports: The insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require. The insured, or in the event of the insured’s incapacity, such as insured’s legal representative (or in the event of such insured’s death, the insured’s legal representative of the person or persons entitled to sue therefor) shall upon each request from us authorize us to obtain relevant medical reports and copies of relevant records. 4. Notice of Legal Action: If the insured or such insured’s legal representative brings any lawsuits against any person or organization legally responsible for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with the lawsuit shall be forwarded immediately to us by the insured or the insured’s legal representative. 11. That it is submitted that Petitioner is entitled to a temporary stay of arbitration pending the completion of discovery. There is no prejudice of any kind to Respondent by the granting of such requested stay. Conversely and patently, substantial harm and prejudice can and will result to PROGRESSIVE if such stay is not granted. 12. Petitioner requests that the Court direct Respondent to submit to an examination under oath and independent medical examination(s), and to provide medical, employment and no-fault 3 of 5 FILED: QUEENS COUNTY CLERK 03/24/2023 08:24 AM INDEX NO. 706270/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023 authorizations as required by the PROGRESSIVE insurance policy, in addition to authorizations for the prior accidents. These discovery items are necessary in order for PROGRESSIVE to properly evaluate Respondent’s claim and to properly defend uninsured motorist arbitration. State Farm v. Wernick, 90 A.D.2d 519, 455 N.Y.S.2d 30 (2nd Dep’t 1982); State Farm v. Provus, 149 A.D.2d 498, 539 N.Y.S.2d 979 (2nd Dep’t 1989); Lancer Ins. Co. V. Berman, 289 A.D.2d 333, 734 N.Y.S.2d 570 (2nd Dep’t 2001). Annexed hereto as Exhibit “E” is a copy of correspondence and Demand to respondent ‘s counsel. 13. That no previous application to this or any other Court has been made for the same or similar relief herein. Dated: New York, New York March 24, 2023 ____________________________ GAIL S. KARAN 4 of 5 FILED: QUEENS COUNTY CLERK 03/24/2023 08:24 AM INDEX NO. 706270/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------x In the Matter of the Application for an Order Index No. Staying Arbitration Between PROGRESSIVE CASUALTY INSURANCE VERIFICATION COMPANY Petitioner, -against- MARISELA SANCHEZ Respondent, --------------------------------------------------------------------x STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) GAIL S. KARAN, ESQ. says that: I am the attorney of record or of counsel with the attorney of record, for Petitioner, Progressive Casualty Insurance Company. I have read the annexed Notice of Petition and Petition and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: The reason I make this Affirmation is that said Petitioner does not presently reside in the County were your deponent has an office. This Affirmation is being made pursuant to CPLR § 7502(a) in the proper County where said Respondent resides. That the sources of your deponent’s information and the grounds of my belief as to the matters so alleged herein are investigations had by the Petitioner, their agents, servants and representatives into the subject matter hereof and correspondence relating thereto, reports of which investigations and copies of which correspondence are in the possession of your deponent. I affirm the foregoing statements are true under the penalties of perjury. Dated: New York, New York March 24, 2023 __ ___________ GAIL S. KARAN 5 of 5