The following e-filed documents for Motion Sequence 1, listed by NYSCEF document numbers “11″, “14″, “16″, and attachments and exhibits thereto, have been read on this motion: Notice of Motion and Affidavits X Affirmation in Opposition X Reply Affirmation X The petitioner moves this Court for an Order permanently staying arbitration pursuant to CPLR §7503, which is attempted to be had by the respondent. In the alternative, the petitioner seeks an Order granting a temporary stay and adding proposed additional respondents Boris Abramovich and Allstate Insurance Company (“Allstate”), for the purpose of a framed issue hearing. If the alternative relief is granted, the petitioner also requests that the respondent be compelled to comply with discovery in aid of arbitration. The respondent opposes the requested relief. The proposed additional respondents, Boris Abramovich and Allstate, did not submit opposition to the petitioner’s motion. The petitioner filed a reply in response to the respondent’s opposition. The subject accident occurred on June 21, 2020 at or near 538 East 21st Street, Brooklyn, New York. The respondent was driving a vehicle insured by the petitioner at the time of the accident. The Petitioner contends that the grounds for a permanent stay of arbitration are that the respondent “has not established that the accident fell within the ambit of the policy itself, entitling him to coverage as he has not proven the involvement of another uninsured vehicle.” According to the petitioner, the police accident report provides that “the alleged accident involved contact between the respondent and a vehicle bearing New York license plate JBT3527.” The petitioner contends that said vehicle was owned by Boris Ambramovich and insured by Allstate. The petitioner acknowledges that Allstate “denied coverage due to [Mr. Abramovich's] vehicle allegedly being stolen at the time of the accident.” Further, the petitioner submits a “Verification of Crime/Lost Property,” which states Mr. Abramovich reported his vehicle stolen on June 20, 2020 and notes that “he left a pair of keys in the vehicle with the doors unlocked.” The respondent’s opposition provides that he “does no object” to the adding of Boris Abramovich and Allstate as proposed additional respondents and requests a “Framed Issue Hearing on the issue of insurance coverage” so that the Court could “determine which insurance carrier’s policy applies” in order to determine whether Allstate’s “disclaimer of coverage was proper.” The respondent further states if the parties are required to proceed with arbitration, he does not object “to appearing for physical examination and Examination Under Oath.” Applicable Law It is well settled that “Vehicle and Traffic Law §388 creates a presumption that the operator of a vehicle operates it with the owner’s permission. This presumption may be rebutted by substantial evidence that the owner did not give the operator consent to operate the vehicle. Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use (internal quotation marks and citations omitted)” (Matter of Country-Wide Ins. Co. v. Park, 167 A.D.3d 735, 736). The evidence submitted to refute the presumption of permissive use, which may include business records, is required to either be authenticated by its maker or certified pursuant to CPLR §4518(c) (Peerless Ins. Co. v. Milloul, 140 A.D.2d 346). The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use” (Marino v. City of New York, 95 AD3d 841). When a vehicle is proven to be stolen, “Insurance Law §3420(f)(1) mandates that automobile insurance policies feature uninsured motorist coverage, in an amount of the minimum liability limits, covering the insured for damages caused by an owner or operator of an uninsured motor vehicle, a stolen vehicle, and a motor vehicle operated without permission of the owner” (Matter of Hartford Acc. & Indem. Co. v. Dellegrazie, 190 A.D.3d 855, 857). Discussion At the outset, the petitioner alleges it received a copy of the respondent’s Demand for Arbitration on September 30, 2021 and filed this application on the same day, which falls within the timing requirements of the CPLR (see CPLR §7503(c)). The respondent’s opposition does not raise objections as to the timeliness of the petitioner’s application or to adding Boris Abramovich and Allstate as additional respondents in this proceeding. The Court next turns its attention to the petitioner’s request for a permanent stay of arbitration. The petitioner relies on copies of the Police Accident Report, an Insurance Activity Expansion printed from the Department of Motor Vehicle’s website, a Verification of Crime/Lost Property, and Insurance Company search in support of its argument that the adverse vehicle owned by the proposed additional respondent Boris Abramovich was insured by proposed additional respondent Allstate. However, none of these documents are properly certified or authenticated (Peerless Ins. Co., 140 A.D.2d at 346). Moreover, the Department of Motor Vehicles Insurance Activity Expansion printout is insufficient to establish that the offending vehicle was insured on the date of the accident (see Matter of Colonial Penn Insurance Co. v. Michel, 163 A.D.2d 307). Thus, there is no evidence submitted by petitioner, admissible or otherwise, establishing that the adverse vehicle was insured at the time of the subject accident and a permanent stay of arbitration is not warranted. With respect to a temporary stay of arbitration, the issue of permissive use is most certainly raised. There is no affidavit from proposed additional respondent Boris Abramovich concerning permissive use, including whether any person had implied consent to operate his vehicle, nor is there any other admissible proof on the issue of permissive use (Matter of Country-Wide Ins. Co., 167 A.D.3d at 736; Marino v. City of New York, 95 AD3d at 841). Therefore, a framed issue hearing is necessary to determine whether or not there was insurance coverage on the offending vehicle and whether the respondent has a right to proceed to arbitration. Accordingly, it is hereby ORDERED, that the branch of the petitioner’s motion seeking to add Boris Abramovich and Allstate Insurance Company as additional respondents to the instant proceeding is granted, and it is further ORDERED, that the branch of the petitioner’s motion seeking a permanent stay of the arbitration is denied, and it is further ORDERED, that the branch of the petitioner’s motion seeking a temporary stay is granted and the demand for arbitration is stayed pending a resolution of the issues raised and/or pursuant to the order of the Court, assigned Justice or Referee, and it is further ORDERED, that subject to the discretion on the Justice presiding in the Calendar Control Part, (CCP), all issues raised in this matter are respectfully referred to for a hearing on March 16, 2021 at 9:30 A.M., to be heard before the presiding Justice or Referee. In the event that the matter is referred to a Referee, such Referee is given the jurisdiction to hear, determine and resolve all issues, and it is further ORDERED, that petitioner shall serve and file a note of issue no later than twenty (20) days after entry of this order, in default of which the action shall be deemed abandoned (see CPLR §3216). A copy of this order shall accompany the note of issue when filed, accompanied by proof that a copy has been mailed to all to the original petition within fifteen (15) days after entry. A copy of this order shall be served on the clerk of CCP within twenty (20) days after entry, and it is further ORDERED, that all carriers claimed to have provided offending vehicle coverage and their insureds are hereby added as necessary parties (see CPLR §1001) provided petitioner obtains jurisdiction over such parties pursuant to CPLR Art. 3 by service of a copy of this order and all papers upon which it is based within twenty (20) days after entry. A failure to add such parties may result in a dismissal for the failure to add a necessary party (see CPLR §1003), and it is futher ORDERED, that there shall be a response to the petition by added the additional respondents. Such response shall be served no later than twenty (20) days after jurisdiction has been obtained. The response by purported insurers shall include copies of all documentation and affidavits relied upon in support of the claims of non-coverage, and it is further ORDERED, that all outstanding discovery shall be completed within forty-five (45) days from the date a determination is made that respondents are entitled to proceed to arbitration. In the event that the hearing court determines that respondents are not entitled to proceed with arbitration, petitioner’s request are denied as moot, and discovery shall proceed according to the terms of the policy of insurance existing between the parties at the time of the accident. The foregoing constitutes the Order of this Court. Dated: December 21, 2021
