Matter of Eagle Insurance Company v. Lucia, 8148.

• Citation: 2006 NY Slip Op 07804,824 N.Y.S.2d 9,33 A.D.3d 552
• Decision Date: 31 October 2006
• Docket Number: 8148.
• Parties: In the Matter of EAGLE INSURANCE COMPANY, Respondent, v. JOSEPH LUCIA, Respondent, TATYANA NUSENBAUM et al., Respondents-Appellants, and A.L. CUADRADO, III, et al., Intervenors-Respondents.
• Court: New York Supreme Court Appellate Division

33 A.D.3d 552

824 N.Y.S.2d 9

2006 NY Slip Op 07804

In the Matter of EAGLE INSURANCE COMPANY, Respondent, v. JOSEPH LUCIA, Respondent, TATYANA NUSENBAUM et al., Respondents-Appellants, and A.L. CUADRADO, III, et al., Intervenors-Respondents.

8148.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 31, 2006.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered on or about February 2, 2005, which vacated a prior order denying the petition to stay arbitration and granted the petition, unanimously modified, on the law, to vacate the granting of the petition, and the matter remanded for a new framed issue hearing to determine whether proposed additional respondent Tatyana Nusenbaum gave express or implied consent to the operation of her motor vehicle by intervenor-respondent A.L. Cuadrado, III, so as to render Nusenbaum vicariously liable for Cuadrado's alleged negligent operation of the vehicle under Vehicle and Traffic Law § 388, and otherwise affirmed, without costs.

On December 11, 2001, a collision occurred between a car operated by respondent Joseph Lucia and a car operated by intervenor-respondent A.L. Cuadrado, III. Lucia, who was injured in the accident, made a claim for uninsured motorist benefits under the policy insuring the car he had been driving, issued by petitioner Eagle Insurance Company. Eagle commenced this proceeding to stay arbitration of Lucia's claim, contending that the car driven by Cuadrado, which was owned by proposed additional respondent Tatyana Nusenbaum, had insurance. Nusenbaum and her insurer then appeared in this proceeding, contending that, because Cuadrado had been driving Nusenbaum's car without Nusenbaum's knowledge or consent, Nusenbaum could not be held liable for Cuadrado's allegedly negligent driving, and Lucia was not entitled to any coverage under her policy.

At the direction of the court, a framed issue hearing was held to determine whether Nusenbaum was subject to any liability for damages arising from Cuadrado's use of her vehicle in the subject accident. The only witnesses who testified at the hearing were Nusenbaum and her teenaged daughter, Anna. Nusenbaum testified that, on the day of the accident, she had given Anna permission to use the car to go to a play rehearsal at a high school, but had specifically told Anna that she was not to allow anyone else to drive the car. Anna testified that she understood that her mother was allowing her to use the car on the condition that she not let anyone else drive it. Anna further testified that she had given the car keys to a friend, Isabel Santiago, not to drive it, but so that Isabel (whom Anna had driven to the school) could retrieve some books and listen to music in the car. Later that day, the car was involved in the accident while being driven by Isabel's boyfriend, Cuadrado. Isabel was a passenger in the car when the accident occurred. Based on the evidence received at the framed issue hearing, the court rendered a decision, entered May 11, 2004, holding that, because neither Nusenbaum nor Anna had consented to Cuadrado's use of the car, "the Nusenbaum's [sic] are exonerated from any liability arising from the use of the Nusenbaum vehicle by [Cuadrado]."

In August 2004, Cuadrado (who apparently had not previously been made a party to this proceeding) appeared and moved to vacate the court's May 2004 order and to hold a new framed issue hearing on the issue of whether Nusenbaum and her insurer were subject to liability in this matter. In support of the application, Cuadrado...