On December 21, 2012 a
Order
was filed
involving a dispute between
Progressive Preferred Insurance Company,
and
Qari Zubair,
Saira Jamshed,
for Contract (Non-Commercial)
in the District Court of Nassau County.
Preview
(FILED: NASSAU COUNTY CLERK 03/29/2013) INDEX NO. 602641/2012
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/29/2013
‘
SUPREME COURT - STATE OF NEW YORK
Present:
HON. ARTHUR M. DIAMOND
Justice Supreme Court
enema eon a penneennnnnnnmnnnn) X TRIAL PART: 10
In the Matter of the Application of the PROGRESSIVE
PREFERRED INSURANCE COMPANY,
NASSAU COUNTY
Petitioner. INDEX NO: 602641-12
-against-
MOTION SEQ. NO:1
To Stay the Arbitration sought to be had by
QARI ZUBAIR and SAIRA JAMSHED,
Respondent. SUBMIT DATE: 2/8/13
Petitioner’s application for an order pursuant to CPLR §7503 permanently staying
respondents from proceeding to arbitration under the Supplementary Uninsured Motorist
Endorsement of the automobile insurance policy or in the alternative issuing a temporary stay and
setting the matter down for a farmed issue hearing is granted to the extent that the arbitration
between Petitioner and the Respondents is temporarily stayed and set down for a Framed Issue
Hearing.
It is well settled that when there are conflicting issues of fact, it is improper for a court to
decide the issue of staying arbitration on a paper record, rather than holding a framed issue hearing.
(see Matter of Am. Prot. Ins. Co. v. DeFalco, 2009 NY Slip OP 03514 [2nd Dept. 2009}).
Specifically, if there is a threshold issue as to whether or not there was physical contact between a
claimant and an alleged hit-and-run vehicle, a hearing is required. (see United States Fire Ins. Co.
v. Williams, 166 AD2d 538 [2nd Dept. 1990; citing Mitchell v. Motor Vehicle Aci. Indemnification
Corp., 82 AD2d 890 [2nd Dept. 1981]).
Subject to the discretion of the Justice there presiding, this matter shall appear on the
calendar of the Calendar Control Part for May 15, 2013 at 9:30 a.m.Petitioner shall serve and file a note of issue no later than twenty (20) days after the date of
this Order or the application will be deemed abandoned. The Note of Issue shall be accompanied
by a copy of this order and proof that jurisdiction has been obtained over all necessary parties and
a statement that a copy of such order has been mailed to all parties to the original petition within
fifteen (15) days after entry.
This constitutes the decision and order of this Court.
ENTER
DATED: March 21, 2013
ENTEPED
MAR 29 cee
To: . NASSAU GOUNTY
Attorney for Petitioner COUNTY CLERK'S0faHte@y for Respondents
ADAMS, HANSON, REGO, CARLIN, HAROLD SOLOMON, ESQ.
HUGHES, KAPLAN & FISHBEIN 430 Sunrise Highway
1 Executive Boulevard, Suite 280 P.O. Box 1100
Yonkers, New York 10701 Rockville Centre, New York 11570
AMERICAN ARBITRATION
ASSOCIATION
65 Broadway, 15" Floor
New York, New York 10006
Document Filed Date
March 29, 2013
Case Filing Date
December 21, 2012
Category
Contract (Non-Commercial)
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(FILED: NASSAU COUNTY CLERK 03/29/2013) INDEX NO. 602641/2012 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/29/2013 ‘ SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHUR M. DIAMOND Justice Supreme Court enema eon a penneennnnnnnmnnnn) X TRIAL PART: 10 In the Matter of the Application of the PROGRESSIVE PREFERRED INSURANCE COMPANY, NASSAU COUNTY Petitioner. INDEX NO: 602641-12 -against- MOTION SEQ. NO:1 To Stay the Arbitration sought to be had by QARI ZUBAIR and SAIRA JAMSHED, Respondent. SUBMIT DATE: 2/8/13 Petitioner’s application for an order pursuant to CPLR §7503 permanently staying respondents from proceeding to arbitration under the Supplementary Uninsured Motorist Endorsement of the automobile insurance policy or in the alternative issuing a temporary stay and setting the matter down for a farmed issue hearing is granted to the extent that the arbitration between Petitioner and the Respondents is temporarily stayed and set down for a Framed Issue Hearing. It is well settled that when there are conflicting issues of fact, it is improper for a court to decide the issue of staying arbitration on a paper record, rather than holding a framed issue hearing. (see Matter of Am. Prot. Ins. Co. v. DeFalco, 2009 NY Slip OP 03514 [2nd Dept. 2009}). Specifically, if there is a threshold issue as to whether or not there was physical contact between a claimant and an alleged hit-and-run vehicle, a hearing is required. (see United States Fire Ins. Co. v. Williams, 166 AD2d 538 [2nd Dept. 1990; citing Mitchell v. Motor Vehicle Aci. Indemnification Corp., 82 AD2d 890 [2nd Dept. 1981]). Subject to the discretion of the Justice there presiding, this matter shall appear on the calendar of the Calendar Control Part for May 15, 2013 at 9:30 a.m.Petitioner shall serve and file a note of issue no later than twenty (20) days after the date of this Order or the application will be deemed abandoned. The Note of Issue shall be accompanied by a copy of this order and proof that jurisdiction has been obtained over all necessary parties and a statement that a copy of such order has been mailed to all parties to the original petition within fifteen (15) days after entry. This constitutes the decision and order of this Court. ENTER DATED: March 21, 2013 ENTEPED MAR 29 cee To: . NASSAU GOUNTY Attorney for Petitioner COUNTY CLERK'S0faHte@y for Respondents ADAMS, HANSON, REGO, CARLIN, HAROLD SOLOMON, ESQ. HUGHES, KAPLAN & FISHBEIN 430 Sunrise Highway 1 Executive Boulevard, Suite 280 P.O. Box 1100 Yonkers, New York 10701 Rockville Centre, New York 11570 AMERICAN ARBITRATION ASSOCIATION 65 Broadway, 15" Floor New York, New York 10006