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NYSCEF DOC. NO. 1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OFBRONX
In the Matter of the Application of
GOVERNMENT EMPLOYEES INSURANCE
COMPANY to Stay Arbitration,
Petitioner(s)
- against - PETITION
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DAMARIS MARRERO, Index No.:
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i! Respondent(s) Returnable: December 17, 2013
- and -
MICHELLE MELENDEZ,
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LIBERTY INSURANCE COMPANY and
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Petitioner, GOVERNMENT EMPLOYEES INSURANCE COMPANY (“GEICO”), by
Law Office of Gail 8. Lauzon, alleges upon information and belief as follows:
L. That the petitioner is a corporation duly organized and existing under the laws of
a state other than New York, and is authorized to do business in the State of New York.
2. Upon information and belief, at all times pertinent herein, respondent, Damaris
Martero, was a resident of the State of New York.
3. Petitioner received a Demand for Arbitration filed by the attomeys for the
respondent on or about October 21, 2013.
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 Friday, November 16, 2012, allegedly involving an uninsured motorist. MICHELLE
MELENDEZ was the owner of the offending vehicle, a 2010 Nissan beating plate number
FYA8603. (A copy of the police 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 N.¥.2d 310, 229 N.Y.S.2d 375 (1962); Jn re General Insurance Company, 100
A.D.2d 905, 474 N.Y.S.2d 792 (2d Dept. 1984).
“INDEX NO. °24085/2013E
RECEIVED NYSCEF: 10/31/20137. More particularly, the police report denotes in the box entitled "Ins. Code", the
number "672", which is the code mumber assigned to LIBERTY INSURANCE
CORPORATION. (See, Exhibit."B").
8. A plate search conducted of the Department of Motor Vehicle records further
confirms that the offending vehicle was insured by LIBERTY INSURANCE CORPORATION.
(See, Exhibit "C"). |
9. 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 LIBERTY INSURANCE COMPANY and MICHELLE
MELENDEZ be joined as additional respondents to this proceeding.
10. Petitioner's burden of proof of insurance on the offending vehicle is satisfied by
presenting either a New York Department of Motor Vehicle Registration Record for said vehicle,
State Farm Mutual Automobile Insurance Company v. Kantner, 217 A.D.2d 633, 629 N.¥.S.2d
786 (2d Dept. 1995), or a police accident report. Continental Company v. Capehart, 220 A.D.2d
499, 632 N.Y.S.2d 179 (2d Dept. 1995). The burden now shifts to respondent and/or LIBERTY
INSURANCE CORPORATION to prove at a framed issue hearing that it did not insure the
vehicle in question, or that it properly cancelled the policy pursuant to Vehicle and Traffic Law
Section 313.
ll. 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 of the petitioner's policy entitled “Conditions”, annexed as Exhibit "D").
12. 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.
WHEREFORE, it is respectfully requested that the Court enter an Order permanently
staying the respondent from proceeding to arbitration, or in the alternative, temporarily staying
this matter pending a hearing on the issue of whether the offending vehicle was indeed
“uninsured", and joining LIBERTY INSURANCE COMPANY and MICHELLE MELENDEZ
as parties to this proceeding, and directing respondent to provide all relevant medical records and
authorizations, and to submit to an examination under oath and physical examinations, if after ahearing it is determined that respondent is entitled to proceed to arbitration, along with such
other and further relief as to this Court deems just and proper.
DATED: Woodbury, New York
October 28, 2013
afVERIFICATION
STATE OF NEW YORK}
88.2
COUNTY OF NASSAU )
Michael Avella, Esq., being duly sworn, deposes and says:
That he is an attorney at law associated with the Law Office of Gail S. Lauzon, attorneys
for the Petitioner herein, an insurance company licensed to do business in the State of New York.
That he has read the foregoing Petition and knows the contents thereof, and that same is
true to own knowledge except as to the matters therein stated to be alleged upon information and
belief, and as to those matters he believes it to be true.
Deponent further says that the reason this verification is made by the deponent and not by
the Petitioner is because the said Petitioner is a foreign corporation and deponent is an attomey
designated by said corporation for the purpose of initiating this proceeding.
‘\
Michael Avella, Esq.
Sworn to before me this
28" day of October, 2013
C Arad Open
NOTARY PUBLIC
CAROL A. QUBELMAN
Notary Public, Slate of New York
° No, ot GusOa4218
luBfifled In Suffolk Cou
Commission Expires Decanter PONSIndex No.
SUPREME COURT OF THE STATE OF NEW YORK
LIBERTY INSURANCE COMPANY and.
MICHELLE MELENDEZ,
In the Matter of the Applicationof == SS ee
GOVERNMENT EMPLOYEES INSURANCE |
COMPANY to Stay Aibitration, |
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Petitioner(s) |
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- against - I NOTICE OF PETITION
| TO STAY ARBITRATION
DAMARIS MARRERO, |
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Respondent(s) |
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- and - |
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Law Office of Gail $. Lauzon
170 Froehlich Farm Boulevard
Woodbury, NY 11797
$16-714-7568
Due and timely service of a copy of the within. : is hereby admitted.
Dated:
Attorney(s) for
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NYSCEF DOC. NO. 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OFBRONX In the Matter of the Application of GOVERNMENT EMPLOYEES INSURANCE COMPANY to Stay Arbitration, Petitioner(s) - against - PETITION | DAMARIS MARRERO, Index No.: | i! Respondent(s) Returnable: December 17, 2013 - and - MICHELLE MELENDEZ, | LIBERTY INSURANCE COMPANY and | | | | Petitioner, GOVERNMENT EMPLOYEES INSURANCE COMPANY (“GEICO”), by Law Office of Gail 8. Lauzon, alleges upon information and belief as follows: L. That the petitioner is a corporation duly organized and existing under the laws of a state other than New York, and is authorized to do business in the State of New York. 2. Upon information and belief, at all times pertinent herein, respondent, Damaris Martero, was a resident of the State of New York. 3. Petitioner received a Demand for Arbitration filed by the attomeys for the respondent on or about October 21, 2013. 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 Friday, November 16, 2012, allegedly involving an uninsured motorist. MICHELLE MELENDEZ was the owner of the offending vehicle, a 2010 Nissan beating plate number FYA8603. (A copy of the police 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 N.¥.2d 310, 229 N.Y.S.2d 375 (1962); Jn re General Insurance Company, 100 A.D.2d 905, 474 N.Y.S.2d 792 (2d Dept. 1984). “INDEX NO. °24085/2013E RECEIVED NYSCEF: 10/31/20137. More particularly, the police report denotes in the box entitled "Ins. Code", the number "672", which is the code mumber assigned to LIBERTY INSURANCE CORPORATION. (See, Exhibit."B"). 8. A plate search conducted of the Department of Motor Vehicle records further confirms that the offending vehicle was insured by LIBERTY INSURANCE CORPORATION. (See, Exhibit "C"). | 9. 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 LIBERTY INSURANCE COMPANY and MICHELLE MELENDEZ be joined as additional respondents to this proceeding. 10. Petitioner's burden of proof of insurance on the offending vehicle is satisfied by presenting either a New York Department of Motor Vehicle Registration Record for said vehicle, State Farm Mutual Automobile Insurance Company v. Kantner, 217 A.D.2d 633, 629 N.¥.S.2d 786 (2d Dept. 1995), or a police accident report. Continental Company v. Capehart, 220 A.D.2d 499, 632 N.Y.S.2d 179 (2d Dept. 1995). The burden now shifts to respondent and/or LIBERTY INSURANCE CORPORATION to prove at a framed issue hearing that it did not insure the vehicle in question, or that it properly cancelled the policy pursuant to Vehicle and Traffic Law Section 313. ll. 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 of the petitioner's policy entitled “Conditions”, annexed as Exhibit "D"). 12. 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. WHEREFORE, it is respectfully requested that the Court enter an Order permanently staying the respondent from proceeding to arbitration, or in the alternative, temporarily staying this matter pending a hearing on the issue of whether the offending vehicle was indeed “uninsured", and joining LIBERTY INSURANCE COMPANY and MICHELLE MELENDEZ as parties to this proceeding, and directing respondent to provide all relevant medical records and authorizations, and to submit to an examination under oath and physical examinations, if after ahearing it is determined that respondent is entitled to proceed to arbitration, along with such other and further relief as to this Court deems just and proper. DATED: Woodbury, New York October 28, 2013 afVERIFICATION STATE OF NEW YORK} 88.2 COUNTY OF NASSAU ) Michael Avella, Esq., being duly sworn, deposes and says: That he is an attorney at law associated with the Law Office of Gail S. Lauzon, attorneys for the Petitioner herein, an insurance company licensed to do business in the State of New York. That he has read the foregoing Petition and knows the contents thereof, and that same is true to own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. Deponent further says that the reason this verification is made by the deponent and not by the Petitioner is because the said Petitioner is a foreign corporation and deponent is an attomey designated by said corporation for the purpose of initiating this proceeding. ‘\ Michael Avella, Esq. Sworn to before me this 28" day of October, 2013 C Arad Open NOTARY PUBLIC CAROL A. QUBELMAN Notary Public, Slate of New York ° No, ot GusOa4218 luBfifled In Suffolk Cou Commission Expires Decanter PONSIndex No. SUPREME COURT OF THE STATE OF NEW YORK LIBERTY INSURANCE COMPANY and. MICHELLE MELENDEZ, In the Matter of the Applicationof == SS ee GOVERNMENT EMPLOYEES INSURANCE | COMPANY to Stay Aibitration, | | | Petitioner(s) | | - against - I NOTICE OF PETITION | TO STAY ARBITRATION DAMARIS MARRERO, | | | Respondent(s) | | - and - | | | | | | Law Office of Gail $. Lauzon 170 Froehlich Farm Boulevard Woodbury, NY 11797 $16-714-7568 Due and timely service of a copy of the within. : is hereby admitted. Dated: Attorney(s) for