Electric Insurance v. Woods

In a proceeding to stay arbitration of an uninsured motorist claim, the appeal is from a judgment of the Supreme Court, Suffolk County (Burke, J.), dated June 6,1983, which granted the application. 11 Judgment reversed, on the law, with costs, and matter remitted to the Supreme Court, Suffolk County, for a hearing in accordance herewith. H Olis and Sarah Woods were involved in a three-car accident on August 26,-1982. Claiming that one of the other vehicles involved in the accident was uninsured, they demanded arbitration under the uninsured motorist indorsement of their own policy. Special Term granted the carrier’s application to stay arbitration because it was undisputed that one of the other vehicles involved in the accident was covered by insurance. We reverse. 11 The fact that there is an insured tort-feasor does not bar the appellants from obtaining uninsured motorist benefits under their own policy if one of the vehicles involved in a multivehicle collision is uninsured (see Matter of O’Brien [Aetna Cas. & Sur. Co.], 33 AD2d 1085 [Cooke, J.]; Matter of State-Wide Ins. Co. v Lang, 30 AD2d 974; Matter of Powers [Continental Ins. Co.], 29 AD2d 1041, mot for lv to app den 22 NY2d 645). Nonetheless, the only proof submitted as to noncoverage consists of a letter from a carrier stating that the policy was canceled. This does not constitute sufficient proof of cancellation (Matter of State-Wide Ins. Co. v Lang, supra). Therefore, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing on that issue (see Nassau Ins. Co. v Minor, 72 AD2d 576; cf. Matter of Utica Mut. Ins. Co. [Bodie — Nationwide Mut. Ins. Co., 100 AD2d 592). Titone, J. P., Gibbons, Brown and Lawrence, JJ., concur.