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(FILED: KINGS COUNTY CLERK 0973072013) INDEX NO. 505794/2013
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ee ee nee nnnnnnnennen
In the Matter of the Application of the Index No.:
PROGRESSIVE NORTHERN INSURANCE
COMPANY,
Petitioner,
-against- PETITION
To Stay the Arbitration sought to be had by
JIAN H. LIANG, as administrator of the Estate of BI Y.
GUAN, Decedent,
Respondent.
we enn tpn nnn nnn nnn nnn nnn nn 2 nn nnn n= === =X
STATE OF NEW YORK }
}ss:
COUNTY OF WESTCHESTER }
Petitioner, by its attorneys, ADAMS, HANSON, REGO, CARLIN, KAPLAN &
FISHBEIN, respectfully shows and alleges:
1. I, MICHAEL A. ZARKOWER, ESQ., am an associate with ADAMS,
HANSON, REGO, CARLIN, KAPLAN & FISHBEIN, the attorneys for PROGRESSIVE
NORTHERN INSURANCE COMPANY, (hereinafter referred to as “PROGRESSIVE”), the
Petitioner herein, and have been authorized to present the within petition.
2. I am familiar with the facts and circumstances of this matter based upon
information contained in a file maintained in the regular course of business of this office.
3. This is an application by Petitioner stay the arbitration sought by Respondent(s).
The petition should be granted because the following issues exist:
e THERE IS NO AGREEMENT TO ARBITRATE;
e THE DECEDENT WAS NOT A RESIDENT RELATIVE UNDER THE POLICY OF
INSURANCE;
e RESPONDENT (IF THE DECEDENT IS DEEMED AN INSURED FOR THEPURPOSES OF THIS UNDERINSURED CLAIM) HAS NOT PROVIDED
DISCOVERY PURSUANT TO THE POLICY OF INSURANCE;
e¢ RESPONDENT HAS NOT PROVIDED LETTERS OF ADMINSTRATION TO
AUTHORIZE THE SERVICE OF THE DEMAND FOR ARBITRATION OR FOR THE
PROSECUTION OF THE CLAIM;
4, On September 13, 2013, Petitioner received by mail, a Demand for Arbitration, a
copy of which is annexed hereto as Exhibit "A".
5. Respondent, JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN,
Decedent, claims that he resides and that the decedent resided in the County of KINGS.
Therefore, pursuant to CPLR §7502(a), Petitioner is entitled to commence this proceeding in
KINGS County.
NO AGREEMENT TO ARBITRATE
6. This petition is being made within twenty (20) days after receipt of the Demand
for Arbitration, pursuant to CPLR §7503(c). However, the twenty (20) day filing requirement
does not apply because there is no valid agreement to arbitrate (see Allstate Ins. Co. v. Roseboro
667 N.Y.S,2d 914 (Mem), 247 A.D.2d 379, 1998 N.Y. Slip Op. 01159 - N.Y.A.D. 2 Dept. 1998
citing, Matter of Matarasso [Continental Cas. Co., 56 N.Y.2d 264, 451 N.Y.S.2d 703, 436
N.E.2d 1305; Matter of American Centennial Ins. Co. v. Williams, supra: Matter of Allstate Ins.
Co., 178 A.D.2d 142, 576 N.Y.S.2d 577).
7. On April 8, 2002, Petitioner had in force a policy of Vermont Automobile
Insurance with ZHI B LU and RUI L. LIANG, under policy number 10489409-0, with a policy
containing a $500,000 combined single limit under a Supplemental Underinsured Motorist
Endorsement. The underlying tortfeasor tendered its $100,000 policy of insurance, leaving a
potential available SUM-Underinsured limit of $400,000 in coverage. However (as notedabove), since said policy was issued from the State of Vermont, arbitration clause requires a
mutual agreement to arbitration and without that mutual agreement to arbitrate this
underinsured motorist claim, there can be no arbitration (a copy of said policy and the
Declaration Page are annexed as Exhibit “B” — see Page 14 of the policy for the arbitration
clause that requires a mutual agreement).
8.
In fact Vermont Law will not compel arbitration without an executed agreement
to arbitrate. Specifically, V.S.A § 5652 -- Validity of arbitration agreements sets forth that:
(a) General rule. Unless otherwise provided in the agreement, a written agreement
to submit any existing controversy to arbitration or a provision in a written
contract to submit to arbitration any controversy thereafter arising between the
parties creates a duty to arbitrate, and is valid, enforceable and irrevocable, except
upon such grounds as exist for the revocation of a contract.
(b) Required provision. No agreement to arbitrate is enforceable unless
accompanied by or containing a written acknowledgment of arbitration signed by
each of the parties or their representatives. When contained in the same document
as the agreement to arbitrate, that acknowledgment shall be displayed
prominently. The acknowledgment shall provide substantially as follows:
“ACKNOWLEDGMENT OF ARBITRATION.
I understand that (this agreement/my agreement with ==
____) contains an agreement to arbitrate. After signing (this/that)
document, I understand that 1 will not be able to bring a lawsuit concerning any
dispute that may arise which is covered by the arbitration agreement, unless it
involves a question of constitutional or civil rights. Instead, I agree to submit any
of
such dispute to an impartial arbitrator.”
Since the Petitioner Progressive has not agreed to arbitrate this matter, then the Petition should
be granted outright.
9.
must be granted as a matter of law (See
Accordingly, without an arbitration agreement, this Petition to Stay Arbitration
Allstate Ins. Co. v. Roseboro (supra) which held that aparty cannot be compelled to submit to arbitration absent an agreement expressly encompassing
the subject matter of the dispute (See also Matter of American Centennial Ins. Co. v. Williams
233 A.D.2d 320, 649 N.Y.S.2d 190 and Matter of Trump [Refco Props.], 194 A.D.2d 70, 74, 605
N.Y.S.2d 248).
THE DECEDENT NOT WAS NOT A RESIDENT RELATIVE
10. However, it must be noted, that there appears to be an issue of fact as to whether
the Decedent was a resident relative of the PROGRESSIVE insured ZHI B. LU in order to be
deemed an insured under the policy. In accordance with the General Definitions section of the
Progressive policy (9610A VT (12/06)) (see Page 2 of the Policy annexed hereto as Exhibit
“B”), the definition of a relative is as follows:
“Relative” means a person residing in the same household as you,
and related to you by blood, marriage, civil union pursuant to
Vermont law, or adoption, and includes a ward, stepchild, or foster
child. Your unmarricd dependent children temporarily away from
home will qualify as a relative if they intend to continue to reside
in your household.
11. In accordance with the Supplemental Uninsured/Underinsured Motorist
Endorsement of the Progressive policy (9610A VT (12/06) (see Exhibit “B”), the definition of
an insured is as follows:
When used in this Part II:
1. “Insured person” means:
a. you or a relative;
b. any person while operating a covered auto with the permission of you or
a relative;
c. any person occupying, but not operating, a covered auto; andd. any person who is entitled to recover damages covered by this Part III
because of bodily injury sustained by a person described in a, b, or c above.
12. According to the Police Report (Exhibit “C”), the Decedent resided at 1353 East
14" Street, in the County of Kings, while the insured address per the Policy of Insurance
(Exhibit “B”) was 3 Salisbury Street, Randolph, Vermont. Thus on its face, there is an issue of
fact as to whether the Decedent was a resident relative pursuant to the policy of insurance.
13. In Appell v. State Farm Ins. Co. 292 A.D.2d 407, 739 N.Y.S.2d 182, 2002 N.Y.
Slip Op. 01918 N.Y.A.D. 2 Dept.,2002, it was held that residency requires something more than
temporary or physical presence and requires at least some degree of permanence and intention to
remain (see, Commercial Mut. Ins. Co. v. Wagschall, 256 A.D.2d 300, 301, 681 N.Y.S.2d 317;
Fiore v. Excelsior Ins., 276 A.D.2d 895, 896, 714 N.Y.S.2d 149; Kradjian y. American Mfrs.
Mut. Ins. Co., 206 A.D.2d 801, 802, 615 N.Y.S.2d 129; New York Cent. Mut. Fire Ins. Co. v.
Kowalski, 195 A.D.2d 940, 941, 600 N.Y.S.2d 977; Canfield v. Peerless Ins. Co., 262 A.D.2d
934, 934-935, 692 N.Y.S.2d 562; Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 383,
401 N.Y.S.2d 336).
14. Here, the purported Administrator has sets forth for the purpose of this claim to be
a resident with the named insured, while the documentary evidence at this juncture contradicts
the assertion. Furthermore, the Respondent on behalf of the estate has not established that there
was a shared residence with the named insured with “at least some degree of permanence or an
intention to remain”. Therefore, since an issue of fact exists as to the Respondent’s residency on
the date of loss and that at least, a temporary stay of arbitration is granted in order for there to be
an evidentiary hearing to ascertain whether the Estate is entitled to make a claim under the
policy.LETTERS OF ADMINISTRATION HAVE NOT BEEN PROVIDED
15. Although the Respondent JLAN H. LIANG has asserted to be the Administrator of
the Estate of the Decedent, BI Y. GUAN, no documentary proof has been provided pursuant to
SCPA 702 and/or EPTL 5-4.1. Without such authority, the demand for Arbitration could not
have been served. Thus, this service of a demand for Arbitration or the adjudication of this
purported underinsured motorist claim may be moot or unripe unless Letters of Administration
are provided.
16. Finally, when Respondent’s counsel initiated the aforesaid uninsured motorist
claim, Petitioner responded by sending correspondence to Respondent on April 18, 2013
requesting compliance with conditions precedent under the policy of insurance (See Exhibit
"D"). Petitioner sought proof of residency (see Exhibits “E”). Respondent provided a single
utility bill (Exhibit ‘F”), yet provided no proof of some degree of permanence or an intention to
remain by either the insured or the Decedent. In light of the lack of proof of residency, the
Petitioner disclaimed coverage on May 7, 2013 (see Exhibit “G”). With the absence of proof of
residency between the Decedent and the PROGRESSIVE insured, then the Petition to Stay
Arbitration should be granted and the SUM-Underinsured claim must be dismissed.
CONDITIONS PRECEDENT - DISCOVERY
17. If this matter is deemed a valid SUM-Underinsured claim, then the Respondent on
behalf of the Estate must provide pre-resolution discovery. Under the policy of insurance,
Respondent is required to comply with certain conditions before compelling Petitioner to
proceed to resolution.
18. Under the policy of insurance, Respondent on behalf of the estate is required to
comply with certain conditions before compelling Petitioner to proceed to arbitration. Pursuantto said policy of insurance, whenever an accident or a loss occurs, an insured is under a duty to
provide authorizations (medical, treatment, hospitals, surgical, diagnostics, primary care
physician, collateral sources, employment, school, priors claims/injuries, subsequent
claims/injuries, etc.). The Respondent on behalf of the estate would be required to provide
testimony as to known damages incurred by the Decedent.
19. Thus, should the Court only temporarily stay Respondent’s Demand for
Arbitration or deems this matter a valid SUM-underinsured claim but does not compel
arbitration, then it is respectfully submitted that the Court compel Respondent to comply with all
outstanding items of discovery as indicated above. In the instant case, the Court can stay the
Arbitration proceedings, and issue an Order “to aid in arbitration” or prior to litigation pursuant
to CPLR §3102(c) since discovery is a necessity in this case. In fact, pursuant to CPLR 3102(c)
and the Court of Appeals holding in the 1974 case of De Sapio v. Kohlmeyer, 35 N.Y.2d 402,
362 N.Y.S.2d 843 321 N.E.2d 770, it was held that where a dispute has been submitted to
Arbitration, a party may obtain disclosure only by Court Order. Furthermore, the Court also
stated that the Court may order discovery to aid arbitration pursuant to CPLR 3102 only in the
presence of “extraordinary circumstances”. See also, State Farm Mut. Auto. Ins. Co. v. Wernick,
455 N.Y.S.2d 30, 90 A.D.2d 519, Second Dept. 1982, Matter of Katz v. State of New York Dept.
of Correctional Servs., 64 A.D.2d 900, 407 N.Y.S.2d 967. The Court went further in the State
Farm Mutual Auto Ins. Co. v. Wernick, supra. The Court held that : “The test is necessity rather
then convenience”. (See also International Components Corp. v. Klaiber, 54 A.D.2d 550, 387
N.Y.S.2d 253 and Matter of Katz [Burkin], 3 A.D.2d 238, 160 N.Y.S.2d 159.
20. Petitioner will be severely prejudiced if not given the opportunity to obtain
medical, hospital, and employment, authorizations; compel the respondent to appear and submit
to independent medical examinations; and to submit to examination(s) under oath conducted byPetitioner. As in the case of State Farm vy Wernick (supra), the court held that without same
Petitioner will be “unable to disprove any of the claimant’s assertions, and will be severely
limited in its ability to present a viable defense.” Furthermore, there will be no prejudice to
Respondent on behalf of the estate complies with the discovery sought.
21. That your Petitioner has no adequate remedy at law and that no other proceedings
have been brought by this Petitioner to this Court to resolve these issues.
22. No prior application for the relief requested herein has been made to any other
Court or Judge.
WHEREFORE, your affirmant respectfully requests that the within petition be granted
in that there is 1) No Agreement to Arbitrate; 2) No proof of residency between the insured and
the Decedent; 3) No proof that the Respondent has authority to proceed with this claim; 4) that
the must be pre-resolution discovery; and 5) for such other, further and different relief as this
Court may deem just and proper.
Dated: Yonkers, New York
September 30, 2013
MICHAEL A. ZARKOWER, ESQ.PETITIONER’S VERIFICATION
STATE OF NEW YORK }
COUNTY OF WESTCHESTER — }
I, JOHN D. FERRARA, being duly sworn, deposes and says:
qd) That deponent with is a Casualty Specialist with the Progressive Corporation and its
subsidiaries including the following: Progressive Casualty Insurance Company, Progressive Halcyon
Insurance Company, Progressive Northeastern Insurance Company, United Financial Casualty
Company, Progressive Northern Insurance Company, Progressive Northwestern Insurance Company,
Progressive Specialty Insurance Company, National Continental Insurance Company, since 2002;
(2) That 1 am authorized by said Corporation to verify the within Petition;
(3) That Petitioner maintains an office at One Executive Boulevard, 3 Floor, Yonkers,
New York 10701 and has conducted business in Westchester County for over 17 years;
(4) That deponent has read the foregoing Petition and knows the contents thereof, that the
same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on
information and belief and that as to those matters deponent believes it to be true.
The above mentioned is sworn to under the penalties of perjury.
2 Lone
(Pou D. FERRARA
Sworn to before me on this
30th day of September, 2013.
[be PUBLIC 7
SHEPHERD
GLOMA:
stay ‘Sisto of New Yost
Fevovenent2578INDEX NO.: YEAR
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
In the Matter of the Application of the
PROGRESSIVE NORTHERN INSURANCE COMPANY,
Petitioner.
-against-
To Stay the Arbitration sought to be had by
JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent,
Respondent.
RJI, NOTICE OF PETITION, PETITION with EXHIBITS
ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN
ATTORNEYS AND COUNSELORS AT LAW
ATTORNEYS FOR PETITIONER
1 EXECUTIVE BOULEVARD, SUITE 280
YONKERS, NEW YORK 10701
(914) 233-1880
ursuant to I-11, the undersigned, an attorney admitted to practice im the courts of New York State,
certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are
not frivolous,
Dated: September 30, 2013 somes Loe eas
EL A. ZARKOWER, ESQ.
eT
Print Signer’s Nam
Service of a copy of the within is hereby admitted.
Dated: a
Attomey(s) foi
PLEASE TAKE NOTICE
[] that the within is a (certified) true copy ofa __ entered in the office of the clerk of the within
NOTICE OF named Court on , 200.
ENTRY
t] that an Order of which the within is a true copy will be presented for settlement to the Hon. At one
of the judges of the within named Court,on ,200 ,at M.
NOTICE OF
SETTLEMENT
Dated: Yonkers, New York
September 30, 2013
KAPLAN, HANSON, McCARTHY,
ADAMS, FINDER & FISHBEIN
Attorneys for Petitioner
1 Executive Blvd., Suite 280
Yonkers, New York 10701
To: (914) 233-1880 File No.: 133817302 UM (MAZ)
Preview
(FILED: KINGS COUNTY CLERK 0973072013) INDEX NO. 505794/2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ee ee nee nnnnnnnennen In the Matter of the Application of the Index No.: PROGRESSIVE NORTHERN INSURANCE COMPANY, Petitioner, -against- PETITION To Stay the Arbitration sought to be had by JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent, Respondent. we enn tpn nnn nnn nnn nnn nnn nn 2 nn nnn n= === =X STATE OF NEW YORK } }ss: COUNTY OF WESTCHESTER } Petitioner, by its attorneys, ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN, respectfully shows and alleges: 1. I, MICHAEL A. ZARKOWER, ESQ., am an associate with ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN, the attorneys for PROGRESSIVE NORTHERN INSURANCE COMPANY, (hereinafter referred to as “PROGRESSIVE”), the Petitioner herein, and have been authorized to present the within petition. 2. I am familiar with the facts and circumstances of this matter based upon information contained in a file maintained in the regular course of business of this office. 3. This is an application by Petitioner stay the arbitration sought by Respondent(s). The petition should be granted because the following issues exist: e THERE IS NO AGREEMENT TO ARBITRATE; e THE DECEDENT WAS NOT A RESIDENT RELATIVE UNDER THE POLICY OF INSURANCE; e RESPONDENT (IF THE DECEDENT IS DEEMED AN INSURED FOR THEPURPOSES OF THIS UNDERINSURED CLAIM) HAS NOT PROVIDED DISCOVERY PURSUANT TO THE POLICY OF INSURANCE; e¢ RESPONDENT HAS NOT PROVIDED LETTERS OF ADMINSTRATION TO AUTHORIZE THE SERVICE OF THE DEMAND FOR ARBITRATION OR FOR THE PROSECUTION OF THE CLAIM; 4, On September 13, 2013, Petitioner received by mail, a Demand for Arbitration, a copy of which is annexed hereto as Exhibit "A". 5. Respondent, JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent, claims that he resides and that the decedent resided in the County of KINGS. Therefore, pursuant to CPLR §7502(a), Petitioner is entitled to commence this proceeding in KINGS County. NO AGREEMENT TO ARBITRATE 6. This petition is being made within twenty (20) days after receipt of the Demand for Arbitration, pursuant to CPLR §7503(c). However, the twenty (20) day filing requirement does not apply because there is no valid agreement to arbitrate (see Allstate Ins. Co. v. Roseboro 667 N.Y.S,2d 914 (Mem), 247 A.D.2d 379, 1998 N.Y. Slip Op. 01159 - N.Y.A.D. 2 Dept. 1998 citing, Matter of Matarasso [Continental Cas. Co., 56 N.Y.2d 264, 451 N.Y.S.2d 703, 436 N.E.2d 1305; Matter of American Centennial Ins. Co. v. Williams, supra: Matter of Allstate Ins. Co., 178 A.D.2d 142, 576 N.Y.S.2d 577). 7. On April 8, 2002, Petitioner had in force a policy of Vermont Automobile Insurance with ZHI B LU and RUI L. LIANG, under policy number 10489409-0, with a policy containing a $500,000 combined single limit under a Supplemental Underinsured Motorist Endorsement. The underlying tortfeasor tendered its $100,000 policy of insurance, leaving a potential available SUM-Underinsured limit of $400,000 in coverage. However (as notedabove), since said policy was issued from the State of Vermont, arbitration clause requires a mutual agreement to arbitration and without that mutual agreement to arbitrate this underinsured motorist claim, there can be no arbitration (a copy of said policy and the Declaration Page are annexed as Exhibit “B” — see Page 14 of the policy for the arbitration clause that requires a mutual agreement). 8. In fact Vermont Law will not compel arbitration without an executed agreement to arbitrate. Specifically, V.S.A § 5652 -- Validity of arbitration agreements sets forth that: (a) General rule. Unless otherwise provided in the agreement, a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties creates a duty to arbitrate, and is valid, enforceable and irrevocable, except upon such grounds as exist for the revocation of a contract. (b) Required provision. No agreement to arbitrate is enforceable unless accompanied by or containing a written acknowledgment of arbitration signed by each of the parties or their representatives. When contained in the same document as the agreement to arbitrate, that acknowledgment shall be displayed prominently. The acknowledgment shall provide substantially as follows: “ACKNOWLEDGMENT OF ARBITRATION. I understand that (this agreement/my agreement with == ____) contains an agreement to arbitrate. After signing (this/that) document, I understand that 1 will not be able to bring a lawsuit concerning any dispute that may arise which is covered by the arbitration agreement, unless it involves a question of constitutional or civil rights. Instead, I agree to submit any of such dispute to an impartial arbitrator.” Since the Petitioner Progressive has not agreed to arbitrate this matter, then the Petition should be granted outright. 9. must be granted as a matter of law (See Accordingly, without an arbitration agreement, this Petition to Stay Arbitration Allstate Ins. Co. v. Roseboro (supra) which held that aparty cannot be compelled to submit to arbitration absent an agreement expressly encompassing the subject matter of the dispute (See also Matter of American Centennial Ins. Co. v. Williams 233 A.D.2d 320, 649 N.Y.S.2d 190 and Matter of Trump [Refco Props.], 194 A.D.2d 70, 74, 605 N.Y.S.2d 248). THE DECEDENT NOT WAS NOT A RESIDENT RELATIVE 10. However, it must be noted, that there appears to be an issue of fact as to whether the Decedent was a resident relative of the PROGRESSIVE insured ZHI B. LU in order to be deemed an insured under the policy. In accordance with the General Definitions section of the Progressive policy (9610A VT (12/06)) (see Page 2 of the Policy annexed hereto as Exhibit “B”), the definition of a relative is as follows: “Relative” means a person residing in the same household as you, and related to you by blood, marriage, civil union pursuant to Vermont law, or adoption, and includes a ward, stepchild, or foster child. Your unmarricd dependent children temporarily away from home will qualify as a relative if they intend to continue to reside in your household. 11. In accordance with the Supplemental Uninsured/Underinsured Motorist Endorsement of the Progressive policy (9610A VT (12/06) (see Exhibit “B”), the definition of an insured is as follows: When used in this Part II: 1. “Insured person” means: a. you or a relative; b. any person while operating a covered auto with the permission of you or a relative; c. any person occupying, but not operating, a covered auto; andd. any person who is entitled to recover damages covered by this Part III because of bodily injury sustained by a person described in a, b, or c above. 12. According to the Police Report (Exhibit “C”), the Decedent resided at 1353 East 14" Street, in the County of Kings, while the insured address per the Policy of Insurance (Exhibit “B”) was 3 Salisbury Street, Randolph, Vermont. Thus on its face, there is an issue of fact as to whether the Decedent was a resident relative pursuant to the policy of insurance. 13. In Appell v. State Farm Ins. Co. 292 A.D.2d 407, 739 N.Y.S.2d 182, 2002 N.Y. Slip Op. 01918 N.Y.A.D. 2 Dept.,2002, it was held that residency requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain (see, Commercial Mut. Ins. Co. v. Wagschall, 256 A.D.2d 300, 301, 681 N.Y.S.2d 317; Fiore v. Excelsior Ins., 276 A.D.2d 895, 896, 714 N.Y.S.2d 149; Kradjian y. American Mfrs. Mut. Ins. Co., 206 A.D.2d 801, 802, 615 N.Y.S.2d 129; New York Cent. Mut. Fire Ins. Co. v. Kowalski, 195 A.D.2d 940, 941, 600 N.Y.S.2d 977; Canfield v. Peerless Ins. Co., 262 A.D.2d 934, 934-935, 692 N.Y.S.2d 562; Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, 383, 401 N.Y.S.2d 336). 14. Here, the purported Administrator has sets forth for the purpose of this claim to be a resident with the named insured, while the documentary evidence at this juncture contradicts the assertion. Furthermore, the Respondent on behalf of the estate has not established that there was a shared residence with the named insured with “at least some degree of permanence or an intention to remain”. Therefore, since an issue of fact exists as to the Respondent’s residency on the date of loss and that at least, a temporary stay of arbitration is granted in order for there to be an evidentiary hearing to ascertain whether the Estate is entitled to make a claim under the policy.LETTERS OF ADMINISTRATION HAVE NOT BEEN PROVIDED 15. Although the Respondent JLAN H. LIANG has asserted to be the Administrator of the Estate of the Decedent, BI Y. GUAN, no documentary proof has been provided pursuant to SCPA 702 and/or EPTL 5-4.1. Without such authority, the demand for Arbitration could not have been served. Thus, this service of a demand for Arbitration or the adjudication of this purported underinsured motorist claim may be moot or unripe unless Letters of Administration are provided. 16. Finally, when Respondent’s counsel initiated the aforesaid uninsured motorist claim, Petitioner responded by sending correspondence to Respondent on April 18, 2013 requesting compliance with conditions precedent under the policy of insurance (See Exhibit "D"). Petitioner sought proof of residency (see Exhibits “E”). Respondent provided a single utility bill (Exhibit ‘F”), yet provided no proof of some degree of permanence or an intention to remain by either the insured or the Decedent. In light of the lack of proof of residency, the Petitioner disclaimed coverage on May 7, 2013 (see Exhibit “G”). With the absence of proof of residency between the Decedent and the PROGRESSIVE insured, then the Petition to Stay Arbitration should be granted and the SUM-Underinsured claim must be dismissed. CONDITIONS PRECEDENT - DISCOVERY 17. If this matter is deemed a valid SUM-Underinsured claim, then the Respondent on behalf of the Estate must provide pre-resolution discovery. Under the policy of insurance, Respondent is required to comply with certain conditions before compelling Petitioner to proceed to resolution. 18. Under the policy of insurance, Respondent on behalf of the estate is required to comply with certain conditions before compelling Petitioner to proceed to arbitration. Pursuantto said policy of insurance, whenever an accident or a loss occurs, an insured is under a duty to provide authorizations (medical, treatment, hospitals, surgical, diagnostics, primary care physician, collateral sources, employment, school, priors claims/injuries, subsequent claims/injuries, etc.). The Respondent on behalf of the estate would be required to provide testimony as to known damages incurred by the Decedent. 19. Thus, should the Court only temporarily stay Respondent’s Demand for Arbitration or deems this matter a valid SUM-underinsured claim but does not compel arbitration, then it is respectfully submitted that the Court compel Respondent to comply with all outstanding items of discovery as indicated above. In the instant case, the Court can stay the Arbitration proceedings, and issue an Order “to aid in arbitration” or prior to litigation pursuant to CPLR §3102(c) since discovery is a necessity in this case. In fact, pursuant to CPLR 3102(c) and the Court of Appeals holding in the 1974 case of De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843 321 N.E.2d 770, it was held that where a dispute has been submitted to Arbitration, a party may obtain disclosure only by Court Order. Furthermore, the Court also stated that the Court may order discovery to aid arbitration pursuant to CPLR 3102 only in the presence of “extraordinary circumstances”. See also, State Farm Mut. Auto. Ins. Co. v. Wernick, 455 N.Y.S.2d 30, 90 A.D.2d 519, Second Dept. 1982, Matter of Katz v. State of New York Dept. of Correctional Servs., 64 A.D.2d 900, 407 N.Y.S.2d 967. The Court went further in the State Farm Mutual Auto Ins. Co. v. Wernick, supra. The Court held that : “The test is necessity rather then convenience”. (See also International Components Corp. v. Klaiber, 54 A.D.2d 550, 387 N.Y.S.2d 253 and Matter of Katz [Burkin], 3 A.D.2d 238, 160 N.Y.S.2d 159. 20. Petitioner will be severely prejudiced if not given the opportunity to obtain medical, hospital, and employment, authorizations; compel the respondent to appear and submit to independent medical examinations; and to submit to examination(s) under oath conducted byPetitioner. As in the case of State Farm vy Wernick (supra), the court held that without same Petitioner will be “unable to disprove any of the claimant’s assertions, and will be severely limited in its ability to present a viable defense.” Furthermore, there will be no prejudice to Respondent on behalf of the estate complies with the discovery sought. 21. That your Petitioner has no adequate remedy at law and that no other proceedings have been brought by this Petitioner to this Court to resolve these issues. 22. No prior application for the relief requested herein has been made to any other Court or Judge. WHEREFORE, your affirmant respectfully requests that the within petition be granted in that there is 1) No Agreement to Arbitrate; 2) No proof of residency between the insured and the Decedent; 3) No proof that the Respondent has authority to proceed with this claim; 4) that the must be pre-resolution discovery; and 5) for such other, further and different relief as this Court may deem just and proper. Dated: Yonkers, New York September 30, 2013 MICHAEL A. ZARKOWER, ESQ.PETITIONER’S VERIFICATION STATE OF NEW YORK } COUNTY OF WESTCHESTER — } I, JOHN D. FERRARA, being duly sworn, deposes and says: qd) That deponent with is a Casualty Specialist with the Progressive Corporation and its subsidiaries including the following: Progressive Casualty Insurance Company, Progressive Halcyon Insurance Company, Progressive Northeastern Insurance Company, United Financial Casualty Company, Progressive Northern Insurance Company, Progressive Northwestern Insurance Company, Progressive Specialty Insurance Company, National Continental Insurance Company, since 2002; (2) That 1 am authorized by said Corporation to verify the within Petition; (3) That Petitioner maintains an office at One Executive Boulevard, 3 Floor, Yonkers, New York 10701 and has conducted business in Westchester County for over 17 years; (4) That deponent has read the foregoing Petition and knows the contents thereof, that the same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters deponent believes it to be true. The above mentioned is sworn to under the penalties of perjury. 2 Lone (Pou D. FERRARA Sworn to before me on this 30th day of September, 2013. [be PUBLIC 7 SHEPHERD GLOMA: stay ‘Sisto of New Yost Fevovenent2578INDEX NO.: YEAR SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS In the Matter of the Application of the PROGRESSIVE NORTHERN INSURANCE COMPANY, Petitioner. -against- To Stay the Arbitration sought to be had by JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent, Respondent. RJI, NOTICE OF PETITION, PETITION with EXHIBITS ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN ATTORNEYS AND COUNSELORS AT LAW ATTORNEYS FOR PETITIONER 1 EXECUTIVE BOULEVARD, SUITE 280 YONKERS, NEW YORK 10701 (914) 233-1880 ursuant to I-11, the undersigned, an attorney admitted to practice im the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous, Dated: September 30, 2013 somes Loe eas EL A. ZARKOWER, ESQ. eT Print Signer’s Nam Service of a copy of the within is hereby admitted. Dated: a Attomey(s) foi PLEASE TAKE NOTICE [] that the within is a (certified) true copy ofa __ entered in the office of the clerk of the within NOTICE OF named Court on , 200. ENTRY t] that an Order of which the within is a true copy will be presented for settlement to the Hon. At one of the judges of the within named Court,on ,200 ,at M. NOTICE OF SETTLEMENT Dated: Yonkers, New York September 30, 2013 KAPLAN, HANSON, McCARTHY, ADAMS, FINDER & FISHBEIN Attorneys for Petitioner 1 Executive Blvd., Suite 280 Yonkers, New York 10701 To: (914) 233-1880 File No.: 133817302 UM (MAZ)