Electric Ins. Co. v. Woods

• Decision Date: 14 May 1984
• Citation: 101 A.D.2d 840,475 N.Y.S.2d 296
• Parties: In the Matter of the ELECTRIC INSURANCE COMPANY, Respondent, v. Olis WOODS, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 296

475 N.Y.S.2d 296

101 A.D.2d 840

In the Matter of the ELECTRIC INSURANCE COMPANY, Respondent, v. Olis WOODS, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

May 14, 1984.

Borda, Wallace & Witty, Bayshore (Jonathan D. Wallace, New York City, of counsel), for appellants.

Kelly, Rode, Kelly & Burke, Mineola (John D. Kelly, and Perry T. Criscitelli, Mineola, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, BROWN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to stay arbitration of an uninsured motorist claim, the appeal is from a judgment of the Supreme Court, Suffolk County, dated June 6, 1983, which granted the application.

Judgment reversed, on the law, with costs, and matter remitted to the Supreme Court, Suffolk County, for a hearing in accordance herewith.

Olis and Sarah Woods were involved in a three-car accident on August 26, 1982. Claiming that one of the other vehicles involved in the accident was uninsured, they demanded arbitration under the uninsured motorist indorsement of their own policy. Special Term granted the carrier's application to stay arbitration because it was undisputed that one of the other vehicles involved in the accident was covered by insurance. We reverse.

The fact that there is an insured tort-feasor does not bar the appellants from obtaining uninsured motorist benefits under their own policy if one of the vehicles involved in a multi-vehicle collision is uninsured (see Matter of O'Brien [Aetna Cas. & Sur. Co.], 33 A.D.2d 1085, 307 N.Y.S.2d 689 [COOKE, J.]; Matter of State-Wide Ins. Co. v. Lang, 30 A.D.2d 974, 294 N.Y.S.2d 661; Matter of Powers [Continental Ins. Co.], 29 A.D.2d 1041, 289 N.Y.S.2d 467, mot. for lv. to app. den. 22 N.Y.2d 645, 295 N.Y.S.2d 1026, 242 N.E.2d 492). Nonetheless, the only proof submitted as to noncoverage consists of a letter from a carrier stating that the policy was canceled. This does not constitute sufficient proof of cancellation (Matter of State-Wide Ins. Co. v. Lang, supra ). Therefore, the matter must be remitted to the Supreme Court, Suffolk County for a hearing on that issue (see Nassau Ins. Co. [Bodie] v. Minor, 72 A.D.2d 576, 420 N.Y.S.2d 938; cf. Matter of Utica Mut. Ins. Co., A.D., 473 N.Y.S.2d 539).