October 29, 2026

Matter of Progressive Direct Ins. Co. v Vargas (2026 NY Slip Op 06393)

https://www.beynensonlaw.com/case-law/matter-of-progressive-direct-ins-co-v-vargas-2026-ny-slip-op-06393/

Court
Appellate Division, First Department
Decided
October 29, 2026
Citation
2026 NY Slip Op 06393
Posture
Other motion
Issues
SUM / uninsured motorist Timeliness and preclusion
Cite as
Matter of Progressive Direct Ins. Co. v Vargas, 2026 NY Slip Op 06393 (1st Dept 2026)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The claimant's evidence raised factual issues about physical contact and compliance with the policy's 24-hour reporting requirement. The insurer obtained a permanent stay of supplemental uninsured motorist arbitration arising from an alleged hit-and-run accident. Physical contact is a condition precedent to arbitration, and the insured bears the burden of proving it. The EMS report contained conflicting accounts, while the claimant affirmed that an unknown vehicle struck the motorcycle. The report also placed police at the scene, and the claimant stated that identifying information was provided to them. Applying a liberal interpretation of the reporting requirement, the Appellate Division, First Department, reversed, vacated the permanent stay and remanded for a hearing on both issues, with arbitration stayed pending that hearing.

Reported in New York Official Reports at Matter of Progressive Direct Ins. Co. v Vargas (2026 NY Slip Op 06393)

Matter of Progressive Direct Ins. Co. v Vargas
2026 NY Slip Op 06393
Decided on October 29, 2026
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.


In the Matter of Progressive Direct Insurance Company, Petitioner-Respondent,

v

Wilmar Cifuentes Vargas, Respondent-Appellant.

Decided and Entered: October 29, 2026

Index No. 820821/24|Appeal No. 7405|Case No. 2026-00167|

Before: Renwick, P.J., Kennedy, Friedman, González, Chan, JJ.

Mitchell Dranow, Sea Cliff, for appellant.

Law Offices of Jennifer S. Adams, Williamsville (Michael A. Zarkower of counsel), for respondent.

[*1]

Order, Supreme Court, Bronx County (Raymond P. Fernandez, J.), entered on or about December 17, 2025, which granted the petition to permanently stay respondent’s supplemental uninsured motorist arbitration demand, unanimously reversed, on the law, without costs, the permanent stay vacated, the matter remanded to Supreme Court and the arbitration stayed pending a hearing to determine whether there was physical contact between respondent’s motorcycle and another vehicle, and whether respondent complied with the requirement to report the accident within 24 hours.

“Physical contact is a condition precedent to an arbitration based on a ‘hit and run’ accident and the burden of proof to demonstrate physical contact is upon the insured” (Matter of Country-Wide Ins. Co. v Colon, 279 AD2d 427, 427 [1st Dept 2001]). Here the EMS Report provided conflicting accounts of whether there was physical contact between respondent and another vehicle. On the one hand it said that respondent “almost collided with a car, causing him to panic and fall of his bike,” while on the other it listed the “Dispatch Reason” as “Pedestrian Struck.” Respondent maintained in his affirmation that an “unknown vehicle” “struck [his] motorcycle,” supporting the notion that there was actual contact. A framed issue hearing is necessary to resolve these discrepancies (see Matter of Universal Underwriters [Zeitlin], 157 AD2d 544, 546 [1st Dept 1990]).

A framed issue hearing is also necessary to determine if respondent complied with the 24-hour reporting requirement in the policy. Applying “a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator’s obtaining a written report” (Country Wide Ins. Co. v Russo, 201 AD2d 368, 370 [1st Dept 1994]), we find that Supreme Court erred in finding that no questions exist as to whether respondent complied. The EMS Report stated that “[u]pon arrival, [respondent] was found sitting on the sidewalk with NYPD present.” Respondent’s affirmation supports this view as he stated that he provided identifying information “to the police at the scene and [he was] unsure why an NYPD report was never made.”

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 29, 2026

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