Empire Mut. Ins. Co. (Greaney), Matter of

• Decision Date: 07 December 1989
• Citation: 156 A.D.2d 154,548 N.Y.S.2d 202
• Parties: In the MATTER OF the Arbitration Attempted to be had between EMPIRE MUTUAL INSURANCE COMPANY, Petitioner-Respondent, and Nancy GREANEY, et al., Respondents-Respondents, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, et al., Additional Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 202

548 N.Y.S.2d 202

156 A.D.2d 154

In the MATTER OF the Arbitration Attempted to be had betweenEMPIRE MUTUAL INSURANCE COMPANYPetitioner-Respondent, and Nancy GREANEY, et al., Respondents-RespondentsNational Union Fire Insurance Company of Pittsburgh Pennsylvania, et al., AdditionalRespondents-Appellants.

Supreme Court, Appellate Division First Department.

Dec. 7, 1989.

A.J. McNulty, New York City, for petitioner-respondent.

D. Kaplan, for respondents-respondents.

A. Kran III, for additional respondents-appellants.

Before MURPHY, P.J., and ROSS, ELLERIN, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Kristin Booth Glen, J.), entered on or about November 23, 1988, which permanently stayed arbitration of respondents-respondents' claim for uninsured motorist coverage pursuant to CPLR 7503(b), unanimously reversed, on the law, without costs, judgment vacated, and the matter remanded for trial.

RespondentsNancy Greaney and Clare Greaney were injured on April 16, 1987 when the automobile in which they were riding, driven by Virginia Greaney, collided with a vehicle registered to one Jose Perez.The police accident report lists the sole occupant of the Perez automobile as Ramon Lopez and indicates that he was issued a summons for operating a vehicle without a license.The report further lists the insurance code for the Perez vehicle as 228, the identification code for additional respondentNational Union Fire Insurance Company("National").Respondents' attorney served a demand for arbitration dated November 13, 1987 pursuant to the uninsured motorist endorsement of the policy covering the Greaney vehicle.In December, 1987, Empire Insurance Group ("Empire") brought a petition to permanently stay arbitration on the ground that respondents failed to meet their burden of proof that the Perez vehicle was uninsured at the time of the accident.

At a trial of the issue of insurance coverage, the IAS court admitted a certified copy of the police accident report into evidence, at which point petitioner rested.National presented no witnesses to rebut petitioner's evidence.The IAS court, holding that the burden shifted to respondents to demonstrate that the Perez vehicle was not insured, granted the petition, permanently staying arbitration.

A party moving for relief before a court bears the burden of establishing entitlement to the relief requested.Therefore, an insurer seeking a stay of arbitration has the burden of establishing evidentiary facts sufficient to warrant a stay (Matter of Hanavan v. MVAIC, 33 A.D.2d 1100, 308 N.Y.S.2d 114[4th Dept.1970];Matter of Kuhn v. MVAIC, 31 A.D.2d 707, 295 N.Y.S.2d 864[3d Dept.1968].The burden of proving the insured status of the offending vehicle is on the insurer seeking the stay, not upon the insured (Supt. of Insurance v. Lilley, 100 A.D.2d 807, 474 N.Y.S.2d 736[1st Dept.1984];Matter of Len v. Lumbermens Mut. Cas. Co., 80 A.D.2d 682, 436 N.Y.S.2d 431[3d Dept.1981].Petitioner has supplied only a certified copy of a police accident report in support of its contention that the offending vehicle was insured.

Upon this appeal, the parties debate the admissibility of the report, a question which turns on the source of the information contained therein.If the Police Officer is a witness to the recorded events or if the person relating the information to the Officer is under a duty to convey the facts, the report is admissible for the truth of those facts as coming within the business duty exception to the hearsay rule (Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517).As a general principle, however, the mere fact that information or statements are routinely recorded "imports...