6 decisions · 3 Appellate Division · 3 Appellate Term
Citing Progressive v Callahan, the Second Department held that a Lyft car carrying a fare in New York City was a for-hire vehicle under Administrative Code § 19-502 (g), not a TNC vehicle, so the passenger was not a SUM insured (Progressive v Service). It reiterated that a triable issue whether a claimant occupied the insured vehicle requires a framed-issue hearing before a permanent stay (Liberty Mut. v McCormack). The Appellate Term, Second Department, held that an assignor with exclusive possession of the uninsured vehicle for over 30 days owned it under Vehicle and Traffic Law § 128, so was not a qualified person for MVAIC (Masigla v MVAIC).
Our summary of the month’s decisions, not the courts’ words.
Issues this month: CPLR article 75 (arbitration awards) 2 SUM / uninsured motorist 2 Policy issues 2 MVAIC 1 Trial and evidence 1 Defaults and vacatur 1
The provider's petition to vacate a master arbitration award upholding the insurer's policy-exhaustion defense was denied. The Appellate Division, Second Department, affirmed dismissal because the provider showed no ground for vacatur under CPLR 7511. It found evidentiary support and a rational basis for the master arbitrator's determination under 11 NYCRR 65-4.10 (a) (2), applying narrow judicial review of no-fault awards.
The passenger did not qualify for SUM coverage because the vehicle was operating for hire within New York City under the policy's definitions. The passenger sought arbitration against the ride-service company's insurer after a collision during a trip originating in Queens and intended to end in Manhattan. The SUM endorsement required operation of a TNC vehicle providing a prearranged service, but excluded transportation in a for-hire vehicle as defined by Administrative Code of the City of New York § 19-502 (g). The vehicle carried a passenger for hire in the city and therefore fell outside that coverage. The Appellate Division, Second Department, reversed and granted the insurer's petition branch seeking a permanent stay of arbitration.
The injured claimant raised a factual issue about occupancy of the insured vehicle that required a hearing before a permanent SUM stay. The insurer sought to permanently stay arbitration under CPLR article 75, asserting that the claimant was not an insured under the SUM endorsement. Although the insurer made a preliminary evidentiary showing, the claimant's opposition raised a triable occupancy issue. Such an issue must be decided by Supreme Court at a framed-issue hearing, with arbitration temporarily stayed pending determination. The Appellate Division, Second Department, reversed the permanent stay and remitted for a hearing and a new determination of that petition branch; it did not reach the claimant's remaining contention.
The assignor's stipulated exclusive possession of the uninsured vehicle for over 30 days defeated eligibility for MVAIC benefits. At a nonjury trial, the parties limited the issue to whether the assignor was a qualified person. The court rejected the provider's contention that the trial stipulation did not establish exclusive possession for more than 30 days when the accident occurred. That possession made the assignor an owner under Vehicle and Traffic Law § 128, defeating the nonownership condition for qualified-person status. Applying Insurance Law § 5202 (b), § 5208 and § 5221 (b) (2), the Appellate Term, Second Department, reversed the provider's judgment and remitted for entry of judgment dismissing the complaint.
The self-insurer established lack of coverage because none of its vehicles was involved in the assignor's accident. In support of its cross-motion for summary judgment dismissing the provider's assigned no-fault claims, the self-insurer submitted the assignor's sworn NF-2 application and a search of its own records. Together, they established that no vehicle belonging to the self-insurer was involved and that the assignor was driving a vehicle it did not own. The provider failed to raise a triable issue. Applying Insurance Law § 5103 (a) (1) and 11 NYCRR 65-2.2 (a) and (j) (3), the Appellate Term, Second Department, affirmed the denial of the provider's motion and the grant of the self-insurer's cross-motion.
The insurer's motion to open its default and compel acceptance of its amended answer was granted and upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding no improvident exercise of discretion by the Civil Court in the provider's action for assigned no-fault benefits.
Headnotes, outcome labels and monthly summaries are our own summaries, not the courts’ words; the decision itself is the authority. Months follow the date a decision was handed down; new decisions are added monthly, so a recent month can still grow.