Wausau Ins. Co. v. Predestin

• Decision Date: 12 November 1985
• Citation: 114 A.D.2d 900,495 N.Y.S.2d 74
• Parties: In the Matter of WAUSAU INSURANCE COMPANY, Petitioner-Respondent, v. Edgar PREDESTIN, Appellant; Aetna Insurance Company, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 74

495 N.Y.S.2d 74

114 A.D.2d 900

In the Matter of WAUSAU INSURANCE COMPANY, Petitioner-Respondent, v. Edgar PREDESTIN, Appellant;

Aetna Insurance Company, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 12, 1985.

Paul S. Mirman, P.C., Brooklyn (Jeffrey H. Schwartz, of counsel), for appellant.

White, Fleischner & Fino, New York City (Marc B. Schram, of counsel), for petitioner-respondent.

Before NIEHOFF, J.P., and LAWRENCE, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, Edgar Predestin appeals from a judgment of the Supreme Court, Queens County (Buschmann, J.), dated June 20, 1984, which granted the application.

Judgment affirmed, with costs.

On December 24, 1980, a car driven by Edgar Predestin collided with a vehicle at the intersection of 114th Avenue and Springfield Boulevard in Queens, New York. The second vehicle was described as having "left scene" by the police accident report. However, Predestin reported that the vehicle bore New York State license number 689 VNX.

The Department of Motor Vehicles Registration Plate Record, commonly known as form FS-25, revealed that the recorded license plate number was registered to a Ms. Gwendolyn McGee and insured by respondent Aetna Insurance Company. Predestin commenced an action against McGee by service of a summons and complaint, both dated May 7, 1981. McGee, however, did not respond; nor did Predestin move for a default judgment.

Predestin filed a notice of intention to arbitrate, dated August 9, 1983, pursuant to the uninsured motorist endorsement of his automobile insurance policy issued by Wausau Insurance Company (hereinafter Wausau). Predestin claims that a notice of intent to file a claim was sent to Wausau on April 2, 1981; however, Wausau contends that said notice was not received until February 16, 1983. Wausau then commenced the instant proceeding by notice of motion dated December 9, 1983 to permanently stay the arbitration of this matter. Special Term determined procedurally that the initial demand for arbitration served by Predestin upon Wausau was a nullity and that, on the merits, by submission of the Department of Motor Vehicles FS-25 form, Wausau had met its burden of proof with respect to whether the offending vehicle was insured on the date of the accident.

Special Term correctly granted the application to permanently stay arbitration. The demand for arbitration was served by regular mail and is therefore a legal nullity (CPLR 7503 Matter of American Mut. Liab. Ins. Co. v. Gladstone, 83 A.D.2d 551, 441 N.Y.S.2d 551; Matter of Chasin v. Chasin, 37 A.D.2d 839, 326 N.Y.S.2d 151). However, CPLR 7503(c) does not prevent Predestin from properly re-serving the demand. Nevertheless, even if proper service were to be made, Predestin would still not be entitled...