Edited by Lawrence N. Rogak
While driving a rental car, claimant was struck by a chunk of concrete that fell off a dump truck, crashed through his windshield and took out his left eye. He filed for UM arbitration and Enterprise Rent-A-Car moved for a stay. The Court held that because the debris was not an integral part of the dump truck, it does not satisfy the contact requirement for SUM or UM coverage. In addition, notice of the claim was late. A permanent stay of arbitration was granted. — LNR

Upon the foregoing papers, the Notice of Petition brought pursuant to CPLR article 75, by the Petitioner, EAN HOLDINGS, LLC, inter alia: (1) permanently staying a demand for arbitration of uninsured motorist benefits by the Respondent, Chrissler L. Joseph; or alternatively (2) temporarily staying the Arbitration to allow for discovery to be conducted, is determined as provided herein.

On April 8, 2010, a rental agreement was entered into between Harold James Lynch and the Petitioner, EAN HOLDINGS, LLC (hereafter “Petitioner” or “EAN”) for the rental of a 2009 Chevrolet bearing Connecticut State license plate number 225WFB. On April 21, 2010, the Respondent, Chrissler L. Joseph, while the driver of the rental vehicle, was allegedly involved in an accident which took place on Sunrise Highway, Route 27, approximately 75 feet from exit 45 in the Town of Islip, County of Suffolk, State of New York. The Respondent claims that while driving the rental vehicle, a piece of concrete fell from a dump truck traveling in front of him, striking the windshield of the rental vehicle, piercing the windshield and striking him in the head. He claims injuries as a result of the occurrence, including the loss of his left eye.

Thereafter, the Respondent served the Petitioner with a demand for arbitration which was dated April 20, 2016. The Petitioner avers that the demand does not specify the nature of the arbitration demanded, SUM or UM. Indeed, a review of the demand indicates that no specific type of arbitration is selected.

By Petition dated May 6, 2016, the Petitioner commenced the within proceeding pursuant to CPLR Article 75, seeking a judgment permanently staying the Respondent, Joseph’s, arbitration demand. In substance, EAN’s Petition is predicated upon allegations that the Respondent’s demand is improper in that it fails to designate whether it is for SUM or UM Arbitration, is untimely in that the Respondent failed to provide the Petitioner with notice of the claim within a reasonable time and that the accident lacks contact with an uninsured vehicle, a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle.

The first of the Petitioner’s objections, that the demand for arbitration does not specify if it is for SUM or UM Arbitration, has not prejudiced the Petitioner in that the instant proceeding has been commenced timely. Regardless, the Demand for Arbitration does indicate that there is no additional tortfeasor and the “Hit-and-Run” category on Page 2 of the Demand is circled.

The second of the Petitioner’s arguments is that the Petitioner failed to give notice of the claim within a reasonable time. In support of this claim, the Petitioner relies on Nationwide Ins. Co. v. Bietsch, 224 AD2d 623 (2d Dept. 1996), where the Court permanently stayed an uninsured motorist claim where the insured failed to give notice within a reasonable time under all the circumstances. The Petitioner further relies on GEICO v. Lawrence, 20 Misc 3d 1120(A), 867 N.Y.S.2d 374 (Sup. Ct., Bronx County 2008) which provided that a delay of more than one year has been held to be unreasonable as a matter of law.

Counsel for the Respondent, in opposition to the issues raised by the Petitioner concerning the timeliness of the demand for arbitration, states that this argument is without merit. Specifically, the Respondent’s counsel states that the Respondent commenced the arbitration within the required statute of limitations, thus it is timely. Additionally, he claims that since his office took over the matter from another attorney in October, 2013, that he assumed the prior counsel had given notice.

With regard to the Petitioner’s claim that no contact from an unidentified vehicle has been established, a condition precedent to an arbitration based upon a hit-and-run accident, the Petitioner argues that the Police Report makes no mention of involvement from any other vehicle. However, the Petitioner argues that even if the chunk of cement that went through the windshield came from another vehicle, the Respondent would still not be entitled to Uninsured Motorist benefits since he cannot establish contact between his vehicle and the uninsured vehicle.

Counsel for the Petitioner cites Smith v. Great Am. Ins. Co., 29 NY2d 116 (1971) as authority for the proposition that objects cast off by a hit-and-run vehicle cannot serve as physical contact necessary to warrant UM coverage if it does not originate in collision. Additionally, the Court of Appeals in Allstate Ins. Co. v. Killakey, 78 NY2d 325 (1991), ruled that “physical contact’ occurs within the meaning of the statute, when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle.” In Killakey, five witnesses detailed that the unidentified vehicle lost a wheel which struck the claimant’s vehicle. Those witnesses also saw the driver of the other vehicle stop and put a spare tire on the vehicle before he left the scene.

In opposition to the Petitioner’s claim that the “chunk of cement” which struck the Respondent’s vehicle did not constitute physical contact between the hit-and-run vehicle and the Respondent’s vehicle, the Respondent’s counsel argues that since the piece of concrete caused the Respondent to be rendered unconscious, thus causing the crash, this object was the direct cause of the accident and the Respondent’s injuries. Relying on Bajrami v. General Acc. Ins. Co., 206 AD2d 527 (2d Dept. 1994), the Respondent’s counsel argues that the requirements of indirect physical contact have been satisfied for the purpose of UM coverage in accordance with Allstate v. Killakey. Specifically, he avers that the Respondent has demonstrated that the object that came from the unidentified vehicle was the primary cause of the collision. However, the Respondent’s counsel does not address how the object, specifically the “chunk of cement,” was an integral part of the other vehicle.

Upon the record presented, the Petitioner, EAN, has established its entitlement to an order permanently staying the uninsured motorist arbitration proceeding instituted by the Respondent, Joseph.

EAN’s argument that Joseph did not timely provide it with notice of his intention to make a claim for uninsured motorist benefits is unrebutted. The Respondent does not come forward with any credible excuse for the almost six- (6) year delay in giving any notice. The Respondent’s claim that the six- (6) year Statute of Limitations had not yet run is insufficient to explain the failure to have given the Petitioner notice within a reasonable time from the date of the accident. Additionally, it has been held that a delay of more than one year is unreasonable as a matter of law. (See Rekemeyer v. State Farm Mut. Auto Ins. Co., 4 NY3d 468 [2005].)

In its opposition papers, the Respondent has not submitted relevant, evidentiary materials which, in any sense, contradict EAN’s arguments, or which would otherwise generate a triable issue of fact or require a hearing on this Petition to stay arbitration. (cf., Matter of Allstate Ins. Co. v. Aizin, 102 AD3d 679 [2d Dept. 2013]; Government Employees Ins. Co. v. Baik, 94 AD3d 888 [2d Dept. 2012]; Matter of New York Cent. Mut. Fire Ins. Co. v. Vento, 63 AD3d 841 [2d Dept. 2009]; Hertz Corp. v. Holmes, 106 AD3d 1001 [2d Dept. 2013].) Rather, the Respondent’s opposition papers contain conclusory averments which do not even address EAN’s factual assertions.

Accordingly it is, ORDERED that the proceeding pursuant to CPLR article 75, by the Petitioner, EAN HOLDINGS, LLC, seeking to permanently stay CHRISSLER L. JOSEPH’s demand for arbitration for uninsured motorist benefits is GRANTED.

2016 NY Slip Op 51229(U)
Decided on August 23, 2016
Supreme Court, Nassau County
Marber, J.

Chunk of Concrete That Fell Off Dump Truck Does Not Qualify for SUM Coverage

Lawrence Rogak