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AFFIDAVIT BY INSURER’S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION AND A FRAMED ISSUE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer (GEICO) did not present sufficient evidence to justify a temporary stay of arbitration and a framed issue hearing in this car-accident case. The insured, Tucci, alleged the accident in which he was severely injured was caused by a driver who struck Tucci's car while attempting to pass and then fled the scene. GEICO claimed  (1) Tucci failed to timely notify it of the accident and (2) there was no evidence of contact with the other car:

” The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay'” … . “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing”… . Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue … .

Here, GEICO failed to show the existence of evidentiary facts regarding Tucci's failure to satisfy the reporting requirement or whether there was physical contact with a hit-and-run vehicle, since, as to those issues, it only provided the unsupported, conclusory assertions of its attorney … . Matter of Government Employees Ins. Co. v Tucci, 2018 NY Slip Op 00142, Second Dept 1-10-18

INSURANCE LAW (STAY OF ARBITRATION, FRAMED ISSUE HEARING, AFFIDAVIT BY INSURER'S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION AND A FRAMED ISSUE HEARING (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, STAY OF ARBITRATION, FRAMED ISSUE HEARING, AFFIDAVIT BY INSURER'S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION AND A FRAMED ISSUE HEARING (SECOND DEPT))/ARBITRATION (INSURANCE LAW, STAY OF ARBITRATION, FRAMED ISSUE HEARING, AFFIDAVIT BY INSURER'S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION AND A FRAMED ISSUE HEARING (SECOND DEPT))/FRAMED ISSUE HEARING (INSURANCE LAW, STAY OF ARBITRATION, FRAMED ISSUE HEARING, AFFIDAVIT BY INSURER'S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION AND A FRAMED ISSUE HEARING (SECOND DEPT)

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