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FILED: NASSAU COUNTY CLERK 09/30/2019 10:54 AM INDEX NO. 613538/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
in-the l\Ïatter of the Application oÏ
GOVERNMENT EMPL OYEES INSURANCE
COMPANY to Stay Arbitration
Petitioner(s)
- against - PETITION
THOMAS ORTIZ, Index No.:
Respondent(s) Returnable: November 7, 2019
- and -
MARYANN PORTER, MARY A PORTER-
FLORIDA,RONNIE JOHNSON and USAA,
__________ Proposed Additional Respondent(s)
!
Petitioner, GOVERNMENT EMPLOYEES INSURANCE COMPANY ("GEICO"), by
Law Office of Gail S. Lauzon, alleges upon information and belief as follows:
1. 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, Thomas
Ortiz Jr, was a resident of the State of New York.
3. Petitioner received a Demand for Arbitration filed by the attorneys for the
respondent on or about September 11, 2019.
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, April 20, 2018, allegedly involving an uninsured motorist. MARY ANN
PORTER was the owner of the offending vehicle, a 2005 Ford bearing plate number PTY3508.
(A copy of the police accident report is annexed as Exhibit "B"). Furthermore, RONNIE
JOHNSON was the driver of said vehicle.
6. It is respectfully submitted that the respondent has failed to submit sufficient
"uninsured"
proof that the vehicle allegedly involved in this accident was, in fact, and such proof
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is a condition precedent to arbitration under the endorsement under which claim is made. In re
Rosenbaum, 11 N.Y.2d 310, 229 N.Y.S.2d 375 (1962); In re General Insurance Company, 100
A.D.2d 905, 474 N.Y.S.2d 792 (2d Dept. 1984).
7. A plate search conducted of the Georgia Department of Motor Vehicle records
further confirms that the offending vehicle was insured by USAA. Specifically, said pohey was
does not appear to have been cancelled prior to the date of the accident. (See, Exhibit "C").
8. 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
"uninsured"
pending a hearing on the issue of whether the offending vehicle was indeed on the
date of the accident, and that MARYANN PORTER, MARY A PORTER-FLORIDA,RONNIE
JOHNSON and USAA, be joined as additional respondents to this proceeding.
9. 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.Y.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 USAA to
prove at a framed issue hearing that it did not insure the vehicle in question, or that it properly
cancelled the policy.
10. In the alternative, the respondent must be permanently stayed from proceeding to
uninsured motorist arbitration as the policy issued by Petitioner to Respondent does not provide
for uninsured motorist benefits.
11. Respondent's 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").
12. The Demand for Arbitration alleges that the respondent sustained injuries in an
accident on 04/20/2018, allegedly involving an uninsured motorist.
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13. GEICO issued policy number 4338166046 to its insured, Eddie A. Ortiz and
Christina Vasiliou which was in force from February 6, 2018.
14. As the GEICO insured maintained a residence in Florida, he was insured under
GEICO's Florida policy, not New York. (A copy of the Florida policy is annexed as Exhibit
"D").
15. Although the loss occurred in New York, any claim brought by respondent under
the GEICO policy must be brought according to the terms of the Florida policy, which does not
allow for arbitration before the American Arbitration Association in New York. Furthermore,
the GEICO insured rejected uninsured motorist coverage under this policy. (See Declaration
Page annexed hereto as Exhibit "E").
16. The GEICO policy (annexed hereto as Exhibit "D") clearly states that "THIS
BENEFITS."
POLICY DOES NOT PROVIDE UNINSURED/UNDERINSURED MOTORIST
(see page 16 of 19).
17. Furthermore, the American Arbitration Association is a New York administrative
body and therefore does not have the jurisdiction to make a binding decision under the rules of a
Florida policy, even if the parties opted to proceed via such route. (See, State Farm Mut. Auto
Ins. Co. v. Mercado, 437 N.Y.S.2d 70, 52 N.Y.2d 840, 418 N.E.2d 663 (1981); Great American
Ins. Co. v. Garcia, 250, A.D.2d 850, 673 N.Y.S.2d 710 (2d Dept. 1998); Allstate Ins. Co. v.
Geller, 218 A.D.2d 797, 630 N.Y.S.2d 803 (2d Dept. 1995); and Aetna Cas. and Sur. Co. v.
Cinisomo, 197 A.D.2d 683, 602 N.Y.S.2d 902 (2d Dept. 1993).
18. 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
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"uninsured", and joining MARYANN PORTER, MARY A PORTER-FLORIDA,RONNIE
JOHNSON and USAA, as parties to this proceeding, in the alternative granting a permañeñt stay
of arbitration on the ground that the policy of insurance issued to the GEICO insured in this case
does not provide for uninsured/underinsured motorist coverage and that the American
Arbitration Association lacks subject matter jurisdiction to hear this matter and directing
respondent to provide all relevant medical records and authorizations, and to submit to an
examination under oath and physical examinations, if after a hearing 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: Hicksville, New York
September 27, 2019
Adrian(15iMag o, .
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VERIFICATION
STATE OF NEW YORK )
sS.:
COUNTY OF NASSAU )
Adriana DiMaggio, Esq., being duly sworn, deposes and says:
That she 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 she has read the foregoing Petition and knows the contents thereof, and that same is
true to her own knowledge except as to the matters therein stated to be alleged upon information
and belief, and as to those matters she 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 attorney
designated by said corporation for the purpose of initiating this proceeding.
Adriana DiMaggfe; És
Sworn to before me this
day of f pkM , 019
NOTARY PUBLfC
ALUSON SPETTMANN
York
Notary Public, State of New
No. 01SP6042476
Qualified in Nassau County
Commission Expires May 30, 2022
Sensitivity: Confidential
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Preview
FILED: NASSAU COUNTY CLERK 09/30/2019 10:54 AM INDEX NO. 613538/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU in-the l\Ïatter of the Application oÏ GOVERNMENT EMPL OYEES INSURANCE COMPANY to Stay Arbitration Petitioner(s) - against - PETITION THOMAS ORTIZ, Index No.: Respondent(s) Returnable: November 7, 2019 - and - MARYANN PORTER, MARY A PORTER- FLORIDA,RONNIE JOHNSON and USAA, __________ Proposed Additional Respondent(s) ! Petitioner, GOVERNMENT EMPLOYEES INSURANCE COMPANY ("GEICO"), by Law Office of Gail S. Lauzon, alleges upon information and belief as follows: 1. 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, Thomas Ortiz Jr, was a resident of the State of New York. 3. Petitioner received a Demand for Arbitration filed by the attorneys for the respondent on or about September 11, 2019. 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, April 20, 2018, allegedly involving an uninsured motorist. MARY ANN PORTER was the owner of the offending vehicle, a 2005 Ford bearing plate number PTY3508. (A copy of the police accident report is annexed as Exhibit "B"). Furthermore, RONNIE JOHNSON was the driver of said vehicle. 6. It is respectfully submitted that the respondent has failed to submit sufficient "uninsured" proof that the vehicle allegedly involved in this accident was, in fact, and such proof Sensitivity: Confidential 1 of 5 FILED: NASSAU COUNTY CLERK 09/30/2019 10:54 AM INDEX NO. 613538/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2019 is a condition precedent to arbitration under the endorsement under which claim is made. In re Rosenbaum, 11 N.Y.2d 310, 229 N.Y.S.2d 375 (1962); In re General Insurance Company, 100 A.D.2d 905, 474 N.Y.S.2d 792 (2d Dept. 1984). 7. A plate search conducted of the Georgia Department of Motor Vehicle records further confirms that the offending vehicle was insured by USAA. Specifically, said pohey was does not appear to have been cancelled prior to the date of the accident. (See, Exhibit "C"). 8. 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 "uninsured" pending a hearing on the issue of whether the offending vehicle was indeed on the date of the accident, and that MARYANN PORTER, MARY A PORTER-FLORIDA,RONNIE JOHNSON and USAA, be joined as additional respondents to this proceeding. 9. 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.Y.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 USAA to prove at a framed issue hearing that it did not insure the vehicle in question, or that it properly cancelled the policy. 10. In the alternative, the respondent must be permanently stayed from proceeding to uninsured motorist arbitration as the policy issued by Petitioner to Respondent does not provide for uninsured motorist benefits. 11. Respondent's 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"). 12. The Demand for Arbitration alleges that the respondent sustained injuries in an accident on 04/20/2018, allegedly involving an uninsured motorist. Sensitivity: Confidential 2 of 5 FILED: NASSAU COUNTY CLERK 09/30/2019 10:54 AM INDEX NO. 613538/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2019 13. GEICO issued policy number 4338166046 to its insured, Eddie A. Ortiz and Christina Vasiliou which was in force from February 6, 2018. 14. As the GEICO insured maintained a residence in Florida, he was insured under GEICO's Florida policy, not New York. (A copy of the Florida policy is annexed as Exhibit "D"). 15. Although the loss occurred in New York, any claim brought by respondent under the GEICO policy must be brought according to the terms of the Florida policy, which does not allow for arbitration before the American Arbitration Association in New York. Furthermore, the GEICO insured rejected uninsured motorist coverage under this policy. (See Declaration Page annexed hereto as Exhibit "E"). 16. The GEICO policy (annexed hereto as Exhibit "D") clearly states that "THIS BENEFITS." POLICY DOES NOT PROVIDE UNINSURED/UNDERINSURED MOTORIST (see page 16 of 19). 17. Furthermore, the American Arbitration Association is a New York administrative body and therefore does not have the jurisdiction to make a binding decision under the rules of a Florida policy, even if the parties opted to proceed via such route. (See, State Farm Mut. Auto Ins. Co. v. Mercado, 437 N.Y.S.2d 70, 52 N.Y.2d 840, 418 N.E.2d 663 (1981); Great American Ins. Co. v. Garcia, 250, A.D.2d 850, 673 N.Y.S.2d 710 (2d Dept. 1998); Allstate Ins. Co. v. Geller, 218 A.D.2d 797, 630 N.Y.S.2d 803 (2d Dept. 1995); and Aetna Cas. and Sur. Co. v. Cinisomo, 197 A.D.2d 683, 602 N.Y.S.2d 902 (2d Dept. 1993). 18. 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 Sensitivity: Confidential 3 of 5 FILED: NASSAU COUNTY CLERK 09/30/2019 10:54 AM INDEX NO. 613538/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2019 "uninsured", and joining MARYANN PORTER, MARY A PORTER-FLORIDA,RONNIE JOHNSON and USAA, as parties to this proceeding, in the alternative granting a permañeñt stay of arbitration on the ground that the policy of insurance issued to the GEICO insured in this case does not provide for uninsured/underinsured motorist coverage and that the American Arbitration Association lacks subject matter jurisdiction to hear this matter and directing respondent to provide all relevant medical records and authorizations, and to submit to an examination under oath and physical examinations, if after a hearing 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: Hicksville, New York September 27, 2019 Adrian(15iMag o, . Sensitivity: Confidential 4 of 5 FILED: NASSAU COUNTY CLERK 09/30/2019 10:54 AM INDEX NO. 613538/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/30/2019 VERIFICATION STATE OF NEW YORK ) sS.: COUNTY OF NASSAU ) Adriana DiMaggio, Esq., being duly sworn, deposes and says: That she 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 she has read the foregoing Petition and knows the contents thereof, and that same is true to her own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters she 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 attorney designated by said corporation for the purpose of initiating this proceeding. Adriana DiMaggfe; És Sworn to before me this day of f pkM , 019 NOTARY PUBLfC ALUSON SPETTMANN York Notary Public, State of New No. 01SP6042476 Qualified in Nassau County Commission Expires May 30, 2022 Sensitivity: Confidential 5 of 5