Preview
= INDEX NO. 505794/2013
NYSCEF BOC. NO. 14 Supreme Court of the State of New York, RECEIVED NYSCEF: 01/30/2014
Appellate Division : Second Judicial Department
Form A — Request for Appellate Division Intervention — Civil
See § 670.3 of the rules of this court for directions on the use of this form (22 NYCRR 670.3),
aes Pont ia is oie angst a)
a a . ea ee iu For Court of Original Instance
PROGRESSIVE NORTHERN INSURANCE COMPANY,
Petitioner,
Date Notice of Appeal Filed
-against-
For Appellate Division
JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent.
Respondent,
C1 Civil Action
Snr TOCPLR article 76 Proceeding
O Special Proceeding Other Appeal
[i Tener Pocodig
(CPLR 5704 Review
Gl CPLR article 75 Arbitration (1 Habeas Corpus Proceedina 0 Orginal Proceeding
eee omelet ea Maa iis aired Reese Rae ee ent
A Administrative Review D. Domestic Relations F Prisoners i Tons
o1 Freedom of Information Law (11 Adoption O11 Discipline (1 Assault, Battery, False
O2 Human Rights. 112 Attorney's Fees 12 Jail Time Calculation Imprisonment
O3 Licenses O13 Children - Support O13 Parole 2 Conversion
O4 Public Employment 14 Children - Custody/Visitation O14 Otter O3 Defamation
o8 Social Services O15 Children - Terminate o4 Fraud
Parent al Rights
Oe Other G. Real Property O5 Intentional infliction of
O16 Children — Abuse/Negiect o1 Condemnation Emotional Distress
B Business & Other Relationships O17 Children - JO/PINS D2 Determine Title O6 Interference with Contract
O1 Partnership/Joint Venture (18 Equitable Distribution oO3 Easements o7 Malicious Prosecution/
o2 Business 9
Exclusive Occupancy of O4 Environmental Abuse of Process
oO3 Religious Residence Os Liens Os Malpractice
oO4 Not-for-Profit (10 Expert's Fees Os Mortgages He Negligence
os Other (011 Maintenance/Alimony O7 Partition (110 Nuisance
12 Marital Status O8 Rent 111 Products Liabitity
C. Contracts 0 13 Paternity O89 Taxation 0 12 Strict Liability
o1 Brokerage (114 Spousal Support 0 10 Zoning (113 Trespass and/or Waste
O2 Commercial Paper 115 Other O14 Other 1 14 Other
o3 Construction
o4 Employment E. Miscellaneous H, Statutory J Wills & Estates
&s Insurance o1 Constructive Trust O1 City of Mount Vernon O1 Accounting
o6 Real Property O2 Debtor & Creditor Charter §§ 120, 127-f, or D2 Discovery
o7 Sales Os Declaratory Judgment 129 O3 Probate/Administration
Os Secured o4 Election Law O2 Eminent Domain Proced- o4 Trusts
Os Other Os Notice of Claim ure Law § 207 Os Other
Oe Other O3 General Municipal Law
§712
O4 Labor Law § 220
Os Public Service Law §§ 128
or 170
Os Other
Form A — RADI - Civil
Paper Appealed From (check one only):
CD Amended Decree 1 Determination 1 Order CO Resettled Order
1 Amended Judgment O Finding DD Order & Judgment 1 Ruling
D1 Amended Order O Interlocutory Decree O Partia! Decree D Other (specify):
B® Decision O Interlocutory Judgment CO Resettled Decree
C1 Decree 1 Judgment CO Resettled Judgment
Court: Supreme Court County: Kings
Dated: January 9, 2014 Entered: January 10, 2014
Judge (name in full): Hon. Debra Silber, J.S.C. Index No.: 505794/2013
Stage: [ 1 Intertocutory l & Final | O1Post-Final Tat [Cves [BIN [CitYes: | Oauy | CNomiuy
Prior Unperfected Appeat Information
Are any unperfected appeals pending in this case? [] Yes [X] No. If yes, do you intend to perfect the appeal or
appeals covered by the annexed notice of appeal with the prior appeals? O Yes [] No. Set forth the Appellate
Division Cause Number(s) of any prior, pending, unperfected appeals:
Celsie macersttel tite)
Commenced by et a Order to Show Cause D1 Notice of Petition (1 Whit of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division
be MU aac MTSE od gd Masi1 (3))
Court County:
Judge (name in full): Order of Transfer Date:
bei BEA eT eo areCRO leg
Court County
Judge (name in full). Dated:
bel Erold mom yt mage t lis meleyee e lel ie lite Moyet ttu tia wel Mery td
Desc! If an appe: |, briefly describe the paper appealed frot . If the appeal from an order, specify the relief requested and whether the motion
was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of the
proceeding. If an appli ition under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed.
The issue on appeal is whether the lower Court (Judge Silber) erred when it denied the Petition to Stay the Underinsured Motorist
Arbitration. The question stems from the Order of the lower Court (Justice Debra Silber), where the Petition to Stay the Underinsured
Motorist Arbitration was denied as untimely when: the argument was not raised in the Respondent’s papers: that there is no
agreement to arbitrate to trigger the 20 day filing requirements of CPLR 7503; and in the alternative, the Respondent failed to prove
the date of receipt of the Demand for Arbitration to trigger the 20 day filing period of CPLR 7503.
Within this Appeal, the Petitioner-Appellant Progressive seeks the reversal of the lower Court’s Order as a matter of law in that
there was no agreement to arbitrate and therefore timeliness remains irrelevant because again there was no agreement to arbitrate.
Petitioner therefore seeks reversal of the Order & restoration of the Petition so that the issues of the lack of an arbitration
agreement, residency and pre-discovery are addressed.
Amount: {f an appeal is from a money judgment, specify the amount awarded.
issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR §5704 review.
(1) Petitioner seeks reversal of the Order & restoration of the Petition so that the issues of a lack of an arbitration agreement, residency and pre-
arbitration are addressed.
Use Form B for Additional Appeal Information
PUAN eeUE Ton)
Instructions: Fill in the name of each party to the action or proceeding, one Examples of a party's original status include: plaintiff, defendant,
name per line. If this form is to be filed for an appeal, indicate the status of the petitioner, respondent, claimant, defendant third-party plaintiff, third-party defendant,
Party in the court of original instance and his, her, or its status in this court, if and intervenor, Examples of a party's Appellate Division status include: appellant,
any. If this form is to be filed for a proceeding commenced in this court, fill in
only the party's name and his, her, or its status in this court,
respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor.
No. Party Name Original Status Appellate Division Status
1 PROGRESSIVE NORTHERN INSURANCE Petitioner Appetlant-Respondent
COMPANY
JIAN H. LIANG, as administrator of the Estate of | Respondent Appellants
BI Y. GUAN, Decedent.
10
11
12
13
14
15
16
17
18
19
20
VOTES MULE Ley
Instructions: Fill in the names of the attorneys or firms of attorneys for the provided.
respective parties. If this form is to be filed with the notice of petition or order
toshow cause by which a special proceeding is to be commenced in the In the event that a litigant represents herself or himself, the box marked
Appellate Division, only the name of the attorney for the petitioner need be “Pro Se” must be checked and the appropriate information for that litigant must be
supplied in the spaces provided.
Attorney/Firm Name: MORELLI ALTERS RATNER, P.C.
Address: 950 Third Avenue, 11" FI.
City: New York State: NY Zip: 10022 Telephone No.: (212) 751-9800
Attorney Type: KX] Retained U Assigned (1 Government Pro Se O Pre Hae Vice
Party or Parties Represented (set forth party number(s) from table above or from 2
Form C):
Attomey/Firm Name: ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN
Address: 1 Executive Bivd., Ste. 280
City: Yonkers State: NY Zip: 10701 Telephone No.: (914) 233-1907
Attorney Type: XX Retained O Assigned O Government O Pro Se 0 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above or from 1
Form C):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No.:
Attorney Type: Retained C1 Assigned O Government O Pro Se 0 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above or from
Form C):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No.:
Attorney Type: OC Retained D Assigned 1 Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above or from
Form C):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No.:
Attorney Type: CO Retained O Assigned O Government O Pro Se C1 Pro Hae Vice
Party or Parties Represented (set forth party number(s) from table above or from
Form C):
Use Form C for Additional Party and/or Attorney Information
The use of this form is explained in § 670.3 of the rules of the Appellate Division, Second Department (22 NYCRR 670.3). If
thisform Is to be filed for an appeal, place the required papers in the following order (1) the Request for Appellate
Gmision Intervention [Form A, this document]. (2) any required Additional Appeal information Forms [Form B], (3) any required
Additional Party and Attomey Information Forms [Form C], (4) the notice of appeal or order granting leave to appeel, (5) a
Copy of the paper or papers from which the appeal or appeals covered in the notice of appeal or order granting leave to appeal
ts or are taken, and (6) a copy of the decision or decisions of the court of onginal instance, if any
73904.1
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF KINGS
- ———]
In the Matter of the Application of the Index No.: 505794/2013
PROGRESSIVE NORTHERN INSURANCE
COMPANY,
Petitioner,
NOTICE OF APPEAL
~ against -
To Stay the Arbitration sought to be had by
JIAN H. LIANG, as administrator of the Estate of BI Y.
GUAN, Decedent,
Respondent.
ee--~---------------------
122 nn -- ===)
SIRS:
PLEASE TAKE NOTICE, that the above named Petitioner, PROGRESSIVE
NORTHERN INSURANCE COMPANY, hereby appeals to the Appellate Division of the
Supreme Court of the State of New York in and for the Second Judicial Department, from an
Order entered in the above entitled action in the office of the Clerk of the Court of the Supreme
Court of KINGS County, on January 10, 2014, which Order denied the Petitioner/Appellant’s
Petition to Stay an Uninsured Motorist Arbitration. This appeal is taken from Order dated
January 9, 2014.
Dated: Yonkers, New York
January 30, 2014
Very truly yours,
ADAMS, HANSON, REGO, CARLIN,
KAPLAN & F
poe
By:*
LA. ZARKOWER, ESQ.
Attorney for Petitioner
PROGRESSIVE NORTHERN
INSURANCE COMPANY
| Executive Boulevard, Suite 280
Yonkers, New York 10701
(914) 233-1907
Our File No.: 133817302-UM (MAZ)
TO
MORELLI ALTERS RATNER, P.C,
Attorneys for Respondent
JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent
950 Third Avenue, 11th Fl.
New York, NY 10022
(212) 751-9800
AMERICAN ARBITRATION ASSOCIATION
120 Broadway, 11th Floor
New York, New York 10271
(917) 438-1500
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
one anne ee ee X
In the Matter of the Application of the
Index No.: 505794/2013
PROGRESSIVE NORTHERN INSURANCE
COMPANY,
Petitioner,
- against -
ORDER WITH
NOTICE OF ENTRY
To Stay the Arbitration sought to be had by
SIAN H. LIANG, as administrator of the Estate of BI Y.
GUAN, Decedent,
Respondent.
wen nnn wenn. eee eeee ene —X
SIRS:
PLEASE TAKE NOTICE, that the within is a true Copy of an Order
dated January 9. 2
2014, and duly entered in the office of the Clerk on January 10, 2014.
Dated: Yonkers, New York
January 30, 2014
Very truly yours,
ADAMS, HANSO!
KAPLAN &
pues
Mi EL A. ZARKOWER, ESQ.
Attomey for Petitioner
PROGRESSIVE NORTHERN
INSURANCE COMPANY
1 Executive Boulevard, Suite 280
Yonkers, New York 10701
(914) 233-1880
Our File No.: 133817302-UM (MAZ)
TO:
MORELLI ALTERS RATNER, P.C.
Attorneys for Respondent
JIANG H. LIANG, as Administrator of the Estate of BI Y. GUAN, Decedent
950 Third Avenue, 11th Fl.
New York, NY 10022
(212) 751-9800
INDEX NO. 505794/2013
NYSCEF DOC. NO. 12
RECEIVED NYSCEF: 01/16/2014
Atan LAS. Trial Term, Part / of the Supreme
Court of the State of New York, held in and
for the
Connty of Kings, at the Courthouse, locate
d at
Civie Center, Borough of. Brooklyn, City and State
of New York, on ain day of) Bi
PRESENT Mote 204
Hon.
Justice
In the Mater
of the A Liana oF Cal Ne, 519
+he PROGRESSIVE NOR ERN Plaintiff(s) Index No.
INSURANCE COMPANY,
Te Stay, the Arbttraten sough to
Sc6744 |} B
be had JIANG H. LIANG,
Odminsiy Vv oF ne Es fant(s)
edent
The following papers numbered 1 to read on this moti on Papers Numbered
Notice of Motion - Order to Show Cause
and Affidavits (Affirmations) Annexed,
Answering Affidavit (Affirmation),
l
Reply Affidavit (Affirmation), Za
Affidavit (Affirmation), =
Pleadings - Exhibits,
Stipulations - Minutes,
Filed Papers.
Th pelihey te Sey The cide hovhern
\s dened ay untimely ys it hy C AL ic
FSC3, Ce) efte,- cea\ C5 — i
ih
For Clerks use only
MG
MD_}~
Motion Seq.# [ co
ENTER
Ob 7
EsV-tev 11-04 Hon, Debog Cither
AMERICAN ARBITRATION ASSOCIATION
120 Broadway, 11th Floor
New York, New York 10271
(917) 438-1500
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
== = mane. oe -X
In theMatter of the Application for
PROGRESSIVE NORTHERN INSURANCE Index No.: 505794/2013
COMPANY,
Petitioner,
- against -
To Stay the Arbitration sought to be had by
AFFIDAVIT OF SERVICE
JIAN H. LIANG, as administrator of the Estate of BI Y.
GUAN, Decedent,
Respondent.
STATE OF NEW YORK }
}:8S.;
COUNTY OF WESTCHESTER }
GLORIA SHEPHERD, being duly sworn, deposes and says: Depone
nt is not a party to
the action, is over 18 years of age and resides in Westchester County.
On January 30, 2014, deponent served the within, ORDER WITH
NOTICE OF
ENTRY upon the following attorneys in this action, at the addresses indicat
ed below, which
addresses have been designated by said attorneys for that purpose by deposit
ing a true copy of
same enclosed in a postpaid properly addressed wrapper, in an official deposit
ory under the
exclusive care and custody of the United States Postal Service within the State
of New York.
TO: MORELLI ALTERS RATNER, P.C.
Attorneys for Respondent
950 Third Avenue, 11th Fl.
New York, NY 10022
AMERICAN ARBITRATION ASSOCIATION
120 Broadway, 11th Floor
New York, New York 10271 4 e
GYAjRIA SHEPHERD
L
Sworm to before me on this
30" day of J ary D4
MICHAEL A. ZARKOWER
Notary Public, State of New York
No. 02245049082
Qualified in Westchester
Commission Expires September 5, 2017
INDEX NO. 505794
YEAR 2013
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.
Se ropes:
ORD E ‘R WITH NOTICE OF ENTRY
NS acre cee
AD. AMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN
ATTORNEYS AND COUNSELORS AT LAW
ATTORNEYS FOR PETITIONER
1 EXECUTIVE BOULEVARD, SUITE 280
YONKERS, NEW YORK 10701
(914) 233-1907
‘Ursudi O fu iv. 7a lersigned, an attorney. fed to practi
in the
ce co} of New Yor
certifies that, upon CO e,
ai or and belief and reasonable inquiry, the contentions contained
med Bis annexed doctment are
not frivolous.
Dated: January
$ 2014 - Signature.
Print Signer’'s Name: MICHAEL A. ZARKOWER, ESQ.
|
ee MICHAEL A. ZARKOWER, ESQ.
Service of a copy of the within 1s hereby admitted.
Dated:
Attormey(s) for
PLEASETAKE NOTICE 2 ——— ——_—_—_——S ae
PLEASE TAKE NOTICE
{] that the within is a (copitied) true copy ofa entered in the office of the clerk of the within
NOTICE OF named Court on » 200
ENTRY
C] 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
January 2014
ADAMS, HANSON, REGO, CARLIN,
KAPLAN & FISHBEIN
Attomeys for Petitioner
1 Executive Blvd, Suite 280
Yonkers, New York 10701
To (914) 233-1907 File No: 133817302-UM (MAZ)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
connec nce ce nen! x Index No.: 505794/2013
In the Matter of the Application of the
PROGRESSIVE NORTHERN INSURANCE
COMPANY,
AFFIDAVIT OF SERVICE
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.
mete neem ene emer
STATE OF NEW YORK }
BSS.:
COUNTY OF WESTCHESTER }
GLORIA SHEPHERD, being duly sworn, deposes and says: Deponent is not a party to
the action, is over 18 years of age and resides in Westchester County.
On January 30, 2014, deponent served the within, THE REQUEST FOR APPELLATE
DIVISION INTERVENTION, NOTICE OF APPEAL, and ORDER WITH NOTICE OF
ENTRY, upon the following attorneys in this action, at the addresses indicated below, which
addresses have been designated by said attorneys for that purpose by depositing a true copy of
same enclosed in a postpaid properly addressed wrapper, in an official depository under the
exclusive care and custody of the United States Postal Service within the State of New York.
TO:
MORELLI ALTERS RATNER, P.C.
Attorneys for Respondent
JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent
950 Third Avenue, 11th Fl.
New York, NY 10022
AMERICAN ARBITRATION ASSOCIATION
120 Broadway, | 1th Floor
(
aee
w u r d
New York, New York 10271
4
Sworn to before me on this
30" day of January, 2044.
YS
MIC! ‘L A. ZARKOWER
Notary Public, State of New York
No, 02; a2
Qualified in Westchester Coun!
Commission Expires September 5, 2017
INDEX NO.: 505794 YEAR 2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Tn 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.
THE REQUEST FOR APPELLATE DIVISION INTERVENTION,
NOTICE OF APPEAL, and ORDER WITH NOTICE OF ENTRY
ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN
ATTORNEYS AND COUNSELORS AT LAW
ATTORNEYS FOR PETITIONER
1 EXECUTIVE BOULEVARD, SUITE 280
YONKERS, NEW YORK 10701
(914) 233-1907
ursuant to Mit, the ersigned, an attorney admitted to practice im the courts Gj ew Lori late,
certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are
ae
not frivolous.
200.
ENTRY
0] 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
January 32, 2014
DAMS, HANSON, REGO, CARLIN,
KAPLAN & FISHBEIN
Attomeys for Petitioner
1 Executive Blvd., Suite 280
Yonkers, New York 10701
To: (914) 233-1907 File No.: 133817302-UM (MAZ)
Preview
= INDEX NO. 505794/2013 NYSCEF BOC. NO. 14 Supreme Court of the State of New York, RECEIVED NYSCEF: 01/30/2014 Appellate Division : Second Judicial Department Form A — Request for Appellate Division Intervention — Civil See § 670.3 of the rules of this court for directions on the use of this form (22 NYCRR 670.3), aes Pont ia is oie angst a) a a . ea ee iu For Court of Original Instance PROGRESSIVE NORTHERN INSURANCE COMPANY, Petitioner, Date Notice of Appeal Filed -against- For Appellate Division JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent. Respondent, C1 Civil Action Snr TOCPLR article 76 Proceeding O Special Proceeding Other Appeal [i Tener Pocodig (CPLR 5704 Review Gl CPLR article 75 Arbitration (1 Habeas Corpus Proceedina 0 Orginal Proceeding eee omelet ea Maa iis aired Reese Rae ee ent A Administrative Review D. Domestic Relations F Prisoners i Tons o1 Freedom of Information Law (11 Adoption O11 Discipline (1 Assault, Battery, False O2 Human Rights. 112 Attorney's Fees 12 Jail Time Calculation Imprisonment O3 Licenses O13 Children - Support O13 Parole 2 Conversion O4 Public Employment 14 Children - Custody/Visitation O14 Otter O3 Defamation o8 Social Services O15 Children - Terminate o4 Fraud Parent al Rights Oe Other G. Real Property O5 Intentional infliction of O16 Children — Abuse/Negiect o1 Condemnation Emotional Distress B Business & Other Relationships O17 Children - JO/PINS D2 Determine Title O6 Interference with Contract O1 Partnership/Joint Venture (18 Equitable Distribution oO3 Easements o7 Malicious Prosecution/ o2 Business 9 Exclusive Occupancy of O4 Environmental Abuse of Process oO3 Religious Residence Os Liens Os Malpractice oO4 Not-for-Profit (10 Expert's Fees Os Mortgages He Negligence os Other (011 Maintenance/Alimony O7 Partition (110 Nuisance 12 Marital Status O8 Rent 111 Products Liabitity C. Contracts 0 13 Paternity O89 Taxation 0 12 Strict Liability o1 Brokerage (114 Spousal Support 0 10 Zoning (113 Trespass and/or Waste O2 Commercial Paper 115 Other O14 Other 1 14 Other o3 Construction o4 Employment E. Miscellaneous H, Statutory J Wills & Estates &s Insurance o1 Constructive Trust O1 City of Mount Vernon O1 Accounting o6 Real Property O2 Debtor & Creditor Charter §§ 120, 127-f, or D2 Discovery o7 Sales Os Declaratory Judgment 129 O3 Probate/Administration Os Secured o4 Election Law O2 Eminent Domain Proced- o4 Trusts Os Other Os Notice of Claim ure Law § 207 Os Other Oe Other O3 General Municipal Law §712 O4 Labor Law § 220 Os Public Service Law §§ 128 or 170 Os Other Form A — RADI - Civil Paper Appealed From (check one only): CD Amended Decree 1 Determination 1 Order CO Resettled Order 1 Amended Judgment O Finding DD Order & Judgment 1 Ruling D1 Amended Order O Interlocutory Decree O Partia! Decree D Other (specify): B® Decision O Interlocutory Judgment CO Resettled Decree C1 Decree 1 Judgment CO Resettled Judgment Court: Supreme Court County: Kings Dated: January 9, 2014 Entered: January 10, 2014 Judge (name in full): Hon. Debra Silber, J.S.C. Index No.: 505794/2013 Stage: [ 1 Intertocutory l & Final | O1Post-Final Tat [Cves [BIN [CitYes: | Oauy | CNomiuy Prior Unperfected Appeat Information Are any unperfected appeals pending in this case? [] Yes [X] No. If yes, do you intend to perfect the appeal or appeals covered by the annexed notice of appeal with the prior appeals? O Yes [] No. Set forth the Appellate Division Cause Number(s) of any prior, pending, unperfected appeals: Celsie macersttel tite) Commenced by et a Order to Show Cause D1 Notice of Petition (1 Whit of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division be MU aac MTSE od gd Masi1 (3)) Court County: Judge (name in full): Order of Transfer Date: bei BEA eT eo areCRO leg Court County Judge (name in full). Dated: bel Erold mom yt mage t lis meleyee e lel ie lite Moyet ttu tia wel Mery td Desc! If an appe: |, briefly describe the paper appealed frot . If the appeal from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of the proceeding. If an appli ition under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. The issue on appeal is whether the lower Court (Judge Silber) erred when it denied the Petition to Stay the Underinsured Motorist Arbitration. The question stems from the Order of the lower Court (Justice Debra Silber), where the Petition to Stay the Underinsured Motorist Arbitration was denied as untimely when: the argument was not raised in the Respondent’s papers: that there is no agreement to arbitrate to trigger the 20 day filing requirements of CPLR 7503; and in the alternative, the Respondent failed to prove the date of receipt of the Demand for Arbitration to trigger the 20 day filing period of CPLR 7503. Within this Appeal, the Petitioner-Appellant Progressive seeks the reversal of the lower Court’s Order as a matter of law in that there was no agreement to arbitrate and therefore timeliness remains irrelevant because again there was no agreement to arbitrate. Petitioner therefore seeks reversal of the Order & restoration of the Petition so that the issues of the lack of an arbitration agreement, residency and pre-discovery are addressed. Amount: {f an appeal is from a money judgment, specify the amount awarded. issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR §5704 review. (1) Petitioner seeks reversal of the Order & restoration of the Petition so that the issues of a lack of an arbitration agreement, residency and pre- arbitration are addressed. Use Form B for Additional Appeal Information PUAN eeUE Ton) Instructions: Fill in the name of each party to the action or proceeding, one Examples of a party's original status include: plaintiff, defendant, name per line. If this form is to be filed for an appeal, indicate the status of the petitioner, respondent, claimant, defendant third-party plaintiff, third-party defendant, Party in the court of original instance and his, her, or its status in this court, if and intervenor, Examples of a party's Appellate Division status include: appellant, any. If this form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court, respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor. No. Party Name Original Status Appellate Division Status 1 PROGRESSIVE NORTHERN INSURANCE Petitioner Appetlant-Respondent COMPANY JIAN H. LIANG, as administrator of the Estate of | Respondent Appellants BI Y. GUAN, Decedent. 10 11 12 13 14 15 16 17 18 19 20 VOTES MULE Ley Instructions: Fill in the names of the attorneys or firms of attorneys for the provided. respective parties. If this form is to be filed with the notice of petition or order toshow cause by which a special proceeding is to be commenced in the In the event that a litigant represents herself or himself, the box marked Appellate Division, only the name of the attorney for the petitioner need be “Pro Se” must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: MORELLI ALTERS RATNER, P.C. Address: 950 Third Avenue, 11" FI. City: New York State: NY Zip: 10022 Telephone No.: (212) 751-9800 Attorney Type: KX] Retained U Assigned (1 Government Pro Se O Pre Hae Vice Party or Parties Represented (set forth party number(s) from table above or from 2 Form C): Attomey/Firm Name: ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN Address: 1 Executive Bivd., Ste. 280 City: Yonkers State: NY Zip: 10701 Telephone No.: (914) 233-1907 Attorney Type: XX Retained O Assigned O Government O Pro Se 0 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from 1 Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: Retained C1 Assigned O Government O Pro Se 0 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: OC Retained D Assigned 1 Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: CO Retained O Assigned O Government O Pro Se C1 Pro Hae Vice Party or Parties Represented (set forth party number(s) from table above or from Form C): Use Form C for Additional Party and/or Attorney Information The use of this form is explained in § 670.3 of the rules of the Appellate Division, Second Department (22 NYCRR 670.3). If thisform Is to be filed for an appeal, place the required papers in the following order (1) the Request for Appellate Gmision Intervention [Form A, this document]. (2) any required Additional Appeal information Forms [Form B], (3) any required Additional Party and Attomey Information Forms [Form C], (4) the notice of appeal or order granting leave to appeel, (5) a Copy of the paper or papers from which the appeal or appeals covered in the notice of appeal or order granting leave to appeal ts or are taken, and (6) a copy of the decision or decisions of the court of onginal instance, if any 73904.1 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF KINGS - ———] In the Matter of the Application of the Index No.: 505794/2013 PROGRESSIVE NORTHERN INSURANCE COMPANY, Petitioner, NOTICE OF APPEAL ~ against - To Stay the Arbitration sought to be had by JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent, Respondent. ee--~--------------------- 122 nn -- ===) SIRS: PLEASE TAKE NOTICE, that the above named Petitioner, PROGRESSIVE NORTHERN INSURANCE COMPANY, hereby appeals to the Appellate Division of the Supreme Court of the State of New York in and for the Second Judicial Department, from an Order entered in the above entitled action in the office of the Clerk of the Court of the Supreme Court of KINGS County, on January 10, 2014, which Order denied the Petitioner/Appellant’s Petition to Stay an Uninsured Motorist Arbitration. This appeal is taken from Order dated January 9, 2014. Dated: Yonkers, New York January 30, 2014 Very truly yours, ADAMS, HANSON, REGO, CARLIN, KAPLAN & F poe By:* LA. ZARKOWER, ESQ. Attorney for Petitioner PROGRESSIVE NORTHERN INSURANCE COMPANY | Executive Boulevard, Suite 280 Yonkers, New York 10701 (914) 233-1907 Our File No.: 133817302-UM (MAZ) TO MORELLI ALTERS RATNER, P.C, Attorneys for Respondent JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent 950 Third Avenue, 11th Fl. New York, NY 10022 (212) 751-9800 AMERICAN ARBITRATION ASSOCIATION 120 Broadway, 11th Floor New York, New York 10271 (917) 438-1500 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS one anne ee ee X In the Matter of the Application of the Index No.: 505794/2013 PROGRESSIVE NORTHERN INSURANCE COMPANY, Petitioner, - against - ORDER WITH NOTICE OF ENTRY To Stay the Arbitration sought to be had by SIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent, Respondent. wen nnn wenn. eee eeee ene —X SIRS: PLEASE TAKE NOTICE, that the within is a true Copy of an Order dated January 9. 2 2014, and duly entered in the office of the Clerk on January 10, 2014. Dated: Yonkers, New York January 30, 2014 Very truly yours, ADAMS, HANSO! KAPLAN & pues Mi EL A. ZARKOWER, ESQ. Attomey for Petitioner PROGRESSIVE NORTHERN INSURANCE COMPANY 1 Executive Boulevard, Suite 280 Yonkers, New York 10701 (914) 233-1880 Our File No.: 133817302-UM (MAZ) TO: MORELLI ALTERS RATNER, P.C. Attorneys for Respondent JIANG H. LIANG, as Administrator of the Estate of BI Y. GUAN, Decedent 950 Third Avenue, 11th Fl. New York, NY 10022 (212) 751-9800 INDEX NO. 505794/2013 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/16/2014 Atan LAS. Trial Term, Part / of the Supreme Court of the State of New York, held in and for the Connty of Kings, at the Courthouse, locate d at Civie Center, Borough of. Brooklyn, City and State of New York, on ain day of) Bi PRESENT Mote 204 Hon. Justice In the Mater of the A Liana oF Cal Ne, 519 +he PROGRESSIVE NOR ERN Plaintiff(s) Index No. INSURANCE COMPANY, Te Stay, the Arbttraten sough to Sc6744 |} B be had JIANG H. LIANG, Odminsiy Vv oF ne Es fant(s) edent The following papers numbered 1 to read on this moti on Papers Numbered Notice of Motion - Order to Show Cause and Affidavits (Affirmations) Annexed, Answering Affidavit (Affirmation), l Reply Affidavit (Affirmation), Za Affidavit (Affirmation), = Pleadings - Exhibits, Stipulations - Minutes, Filed Papers. Th pelihey te Sey The cide hovhern \s dened ay untimely ys it hy C AL ic FSC3, Ce) efte,- cea\ C5 — i ih For Clerks use only MG MD_}~ Motion Seq.# [ co ENTER Ob 7 EsV-tev 11-04 Hon, Debog Cither AMERICAN ARBITRATION ASSOCIATION 120 Broadway, 11th Floor New York, New York 10271 (917) 438-1500 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS == = mane. oe -X In theMatter of the Application for PROGRESSIVE NORTHERN INSURANCE Index No.: 505794/2013 COMPANY, Petitioner, - against - To Stay the Arbitration sought to be had by AFFIDAVIT OF SERVICE JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent, Respondent. STATE OF NEW YORK } }:8S.; COUNTY OF WESTCHESTER } GLORIA SHEPHERD, being duly sworn, deposes and says: Depone nt is not a party to the action, is over 18 years of age and resides in Westchester County. On January 30, 2014, deponent served the within, ORDER WITH NOTICE OF ENTRY upon the following attorneys in this action, at the addresses indicat ed below, which addresses have been designated by said attorneys for that purpose by deposit ing a true copy of same enclosed in a postpaid properly addressed wrapper, in an official deposit ory under the exclusive care and custody of the United States Postal Service within the State of New York. TO: MORELLI ALTERS RATNER, P.C. Attorneys for Respondent 950 Third Avenue, 11th Fl. New York, NY 10022 AMERICAN ARBITRATION ASSOCIATION 120 Broadway, 11th Floor New York, New York 10271 4 e GYAjRIA SHEPHERD L Sworm to before me on this 30" day of J ary D4 MICHAEL A. ZARKOWER Notary Public, State of New York No. 02245049082 Qualified in Westchester Commission Expires September 5, 2017 INDEX NO. 505794 YEAR 2013 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. Se ropes: ORD E ‘R WITH NOTICE OF ENTRY NS acre cee AD. AMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN ATTORNEYS AND COUNSELORS AT LAW ATTORNEYS FOR PETITIONER 1 EXECUTIVE BOULEVARD, SUITE 280 YONKERS, NEW YORK 10701 (914) 233-1907 ‘Ursudi O fu iv. 7a lersigned, an attorney. fed to practi in the ce co} of New Yor certifies that, upon CO e, ai or and belief and reasonable inquiry, the contentions contained med Bis annexed doctment are not frivolous. Dated: January $ 2014 - Signature. Print Signer’'s Name: MICHAEL A. ZARKOWER, ESQ. | ee MICHAEL A. ZARKOWER, ESQ. Service of a copy of the within 1s hereby admitted. Dated: Attormey(s) for PLEASETAKE NOTICE 2 ——— ——_—_—_——S ae PLEASE TAKE NOTICE {] that the within is a (copitied) true copy ofa entered in the office of the clerk of the within NOTICE OF named Court on » 200 ENTRY C] 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 January 2014 ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN Attomeys for Petitioner 1 Executive Blvd, Suite 280 Yonkers, New York 10701 To (914) 233-1907 File No: 133817302-UM (MAZ) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS connec nce ce nen! x Index No.: 505794/2013 In the Matter of the Application of the PROGRESSIVE NORTHERN INSURANCE COMPANY, AFFIDAVIT OF SERVICE 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. mete neem ene emer STATE OF NEW YORK } BSS.: COUNTY OF WESTCHESTER } GLORIA SHEPHERD, being duly sworn, deposes and says: Deponent is not a party to the action, is over 18 years of age and resides in Westchester County. On January 30, 2014, deponent served the within, THE REQUEST FOR APPELLATE DIVISION INTERVENTION, NOTICE OF APPEAL, and ORDER WITH NOTICE OF ENTRY, upon the following attorneys in this action, at the addresses indicated below, which addresses have been designated by said attorneys for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. TO: MORELLI ALTERS RATNER, P.C. Attorneys for Respondent JIAN H. LIANG, as administrator of the Estate of BI Y. GUAN, Decedent 950 Third Avenue, 11th Fl. New York, NY 10022 AMERICAN ARBITRATION ASSOCIATION 120 Broadway, | 1th Floor ( aee w u r d New York, New York 10271 4 Sworn to before me on this 30" day of January, 2044. YS MIC! ‘L A. ZARKOWER Notary Public, State of New York No, 02; a2 Qualified in Westchester Coun! Commission Expires September 5, 2017 INDEX NO.: 505794 YEAR 2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Tn 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. THE REQUEST FOR APPELLATE DIVISION INTERVENTION, NOTICE OF APPEAL, and ORDER WITH NOTICE OF ENTRY ADAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN ATTORNEYS AND COUNSELORS AT LAW ATTORNEYS FOR PETITIONER 1 EXECUTIVE BOULEVARD, SUITE 280 YONKERS, NEW YORK 10701 (914) 233-1907 ursuant to Mit, the ersigned, an attorney admitted to practice im the courts Gj ew Lori late, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are ae not frivolous. 200. ENTRY 0] 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 January 32, 2014 DAMS, HANSON, REGO, CARLIN, KAPLAN & FISHBEIN Attomeys for Petitioner 1 Executive Blvd., Suite 280 Yonkers, New York 10701 To: (914) 233-1907 File No.: 133817302-UM (MAZ)