Peerless Ins. Co. v. Milloul

• Decision Date: 02 May 1988
• Citation: 140 A.D.2d 346,527 N.Y.S.2d 838
• Parties: In the Matter of PEERLESS INSURANCE COMPANY, Petitioner-Respondent, v. Sarine MILLOUL, et al., Respondents, United States Fire Insurance Co., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 838

527 N.Y.S.2d 838

140 A.D.2d 346

In the Matter of PEERLESS INSURANCE COMPANY, Petitioner-Respondent, v. Sarine MILLOUL, et al., Respondents, United States Fire Insurance Co., Appellant.

Supreme Court, Appellate Division,

Second Department.

May 2, 1988.

Bombara & McGlynn, New York City (Martin M. McGlynn, of counsel), for appellant.

Jerome A. Gottlieb, Hauppauge (David Farber, of counsel), for petitioner-respondent.

Before MOLLEN, P.J., and MANGANO, BRACKEN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to permanently stay an uninsured motorist arbitration, the United States Fire Insurance Co. appeals (1) from a judgment of the Supreme Court, Kings County (Levine, J.), dated November 13, 1986, which, after a nonjury trial, granted the application for a permanent stay of arbitration, and (2) from an order of the same court, dated January 29, 1987, which denied a motion, inter alia, for a new trial.

ORDERED that the judgment is reversed, on the law and the facts, the application for a permanent stay of arbitration is denied, and the parties are directed to proceed to arbitration; and it is further,

ORDERED that the appeal from the order dated January 29, 1987, is dismissed as academic; and it is further,

ORDERED that the appellant is awarded one bill of costs.

On December 19, 1984, Boris Milloul was struck by an automobile while he was crossing Avenue J in Brooklyn. His attorney requested an arbitration pursuant to the uninsured motorist endorsement to an insurance policy issued by Peerless Insurance Company (hereinafter Peerless). Peerless then sought a stay of arbitration upon the ground that the vehicle which struck Mr. Milloul had been identified as one owned by Shelly D. Wright and insured by United States Fire Insurance Company. Milloul's attorney opposed this application, stating that the identification of the Wright vehicle, which is contained in a police report, is unreliable since it is based upon a license plate number furnished by a bystander to the accident, whose identity was, and remains, unknown.

A nonjury trial was held in the Supreme Court, Kings County. The evidence submitted by Peerless consisted solely of uncertified and unauthenticated copies of a police report and a New York State Department of Motor Vehicles Form FS-25. These documents were accepted into evidence over a specific objection as to their competence as evidence. United States Fire Insurance Company produced a witness who testified as to the circumstances of his search of that company's records, which caused him to conclude that that company had never issued an automobile insurance policy to Shelly D. Wright. At the conclusion of the hearing, the court granted the application for a stay of arbitration. This appeal followed.

Certain business records may be received into evidence without having been authenticated by their maker, but only if those records are certified in accordance with CPLR 4518(c) ( see, O'Connor v. Incorporated Vil. of Port Jefferson, 104 A.D.2d 861, 862-863, 480 N.Y.S.2d 376; Liberto v. Worcester Mut. Ins. Co., 87 A.D.2d 477, 479, 452 N.Y.S.2d 74, lv. dismissed 58 N.Y.2d 605, 459 N.Y.S.2d 1028, 445 N.E.2d 655, 58 N.Y.2d 824). The admission into evidence of the FS-25 form and the police report, without the benefit of any testimony establishing their authenticity or accuracy, and without proper certification, was therefore error. The insurance information contained in the police report was not furnished by the driver of the offending vehicle (cf., Matter of Eagle Ins. Co. v. Olephant, 81 A.D.2d 886, 439 N.Y.S.2d 159). The...