HOME INSURANCE COMPANY and

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 22 Present: HON. WilLIAM R. lamarca Justice In the Matter of the Petition of METLIFE AUTO & HOME INSURANCE COMPANY, and METROPOLITAN CASUALTY INSURANCE COMPANY, Motion Sequence # 003 Submitted January 18, 2005 Petitioners, INDEX NO: 9677/04 For an Order staying the arbitration attempted to be had by MELISSA CITTADINO, -and- Respondent, BRYANT L. GRIFFIN, and INTEGON NATIONAL INSURANCE COMPANY, Additional Respondents. The following papers were read on this motion: Notice of Motion...I Affrmation in Opposition... Reply Affirmation... I I Petitioners, METLIFE AUTO HOME INSURANCE COMPANY and METROPOLITAN CASUALTY INSURANCE COMPANY (hereinafter referred to as METLlFE") moves for an order, pursuant to CPLR 3215, granting the petition to stay

2 ). uninsured motorist arbitration demanded by respondent, MELISSA CITTADINO, by demand dated June 24, 2004, upon her default and the default of the additional respondents, BRYANT L. GRIFFIN and INTEGON NATIONAL INSURANCE COMPANY (hereinafter referred to as "INTEGON" Counsel for respondent, CITTADINO, opposes the motion which is determined as follows: This matter arises from an accident that occurred on March 25, 1998 when CITTADINO, driving a 1998 Ford owned by her father, came in contact with a school bus, owned by COURTESY BUS CO., INC. and driven by BRYANT L. GRIFFIN. METLIFE states that Department of Motor Vehicle records reflect that, on the date of the accident the Ford was insured by INTEGON NATIONAL INSURANCE COMPANY (hereinafter referred to as "INTEGON"), the bus was insured by Reliance National Indemnity Company (hereinafter referred to as " RELIANCE"), and that GRIFFIN had his own vehicle which was insured by INTEGON. Petitioner asserts that, "presumably, GRIFFIN' s policy with INTEGON provided him with coverage for negligence while driving another vehicle Petitioner states that, on the basis of her contention that the offending bus was uninsured because its insurer, RELIANCE, was insolvent, CITTADINO asserted claims for uninsured motorist benefits against INTEGON, as insurer of her father s Ford, and against METLlFE, as insurer of two other vehicles owned by her father. As a member of her parent's household on the date of the accident, it was CITTADINO' s position that she was entitled to benefits under both the INTEGON (uninsured motorist benefits) and the METLIFE (supplemental uninsured motorist benefits) policies of insurance maintained by her father.

3 By Notice of Petition, dated July 12, 2004, INTEGON sought to stay the demanded arbitration in Supreme Court, Queens County, under Index No /04, which petition remains sub judice. By Notice of Petition, dated July 16, 2004, METLIFE sought to stay the demanded arbitration before this Court. Subsequently, CITTADINO sought to consolidate the two (2) petitions and to transfer the Queens action to Nassau, but this Court denied said request, without prejudice, by Short Form Order, dated March , as the motion was defective because all interested parties had not been served. The Court notes that the INTEGON petition remains in the Supreme Court, Queens County, and that no decision has been rendered to date. METLIFE points out that, on the initial petition to stay arbitration, it named CITTADINO as respondent and GRIFFIN and INTEGON as additional respondents, and that jurisdiction was obtained over all of them as they were all duly served. METLIFE reminds the Court that all of the named respondents failed to oppose the petition, despite several adjournments. METLIFE states that, for unknown reasons, the Court did not find against respondents on default but set the matter down for a framed issue hearing on whether there was a right to proceed to arbitration or whether there was insurance coverage for the offending vehicle with INTEGON or any other company. The Court, under the mistaken belief that the additional respondents were not yet served, directed that "all carriers claimed to have provided offending vehicle coverage and their insured are hereby added as necessary parties (See CPLR 1001) provided Petitioners obtain jurisdiction over such parties by service of a copy of this Order and all of the papers upon which it is based... within twenty (20) days after entry. Furthermore, the Court directed a response to the petition by the added respondents within twenty (20) days after jurisdiction was obtained

4 including documentation and affidavits relied upon in support of any claim of non-coverage METLIFE states that, in accordance with the Court' s direction it served CITTADINO, GRIFFIN and INTEGON with the March 7, 2005 Court order, with notice of entry, together with copies of all the papers previously served, and once again each of the respondents failed to submit any response or opposition to the petition. METLIFE urges that CITTADINO, GRIFFIN and INTEGON have defaulted in opposing the petition two (2) times and, thus, should be deemed to have admitted all of the traversable allegations of the petition. It requests that the petition be granted in its entirety based upon a finding of coverage by INTEGON. In opposition to the motion, counsel for CITTADINO urges that the framed issue hearing directed by the Court go forward, as the Court' s prior decision clearly directed a hearing and made no further issue of CITTADINO' s "default". Counsel states that he has repeatedly appeared in the Calendar Control Part of this Court prepared to proceed with the hearing and that METLIFE has made numerous requests to adjourn the hearing, by application of the Nassau Attorney s Service, and has made no effort to proceed. Counsel argues that even if GRIFFIN maintained a policy of insurance on his personal vehicle with INTEGON, said policy would not provide coverage in this matter because at the time of the accident GRIFFIN was driving a school bus as a paid employee of COURTESY BUS CO. INC. and the standard exclusion for any claims arising out of the operation of a motor vehicle in the course of employment would bar coverage. In this regard, the Court notes that the affirmation of counsel without personal knowledge of the facts is of no evidentiary or probative value. See, Roche v Hearst 53 NY2d 767 (1981). Moreover, in light of RELIANCE' s acknowledged insolvency, the notification by the PVM Fund, that it was

5 unable to provide either a defense or indemnification of respondent' s personal injury claim because it was "financially strained", may result in coverage to respondent from INTEGON on the Ford' s uninsured motorist coverage as it may qualify as a denial of coverage within the meaning of Insurance Law ~3420(f)(1). See, Eagle Insurance v Hamilon 16 AD3d 498, 791 NYS2d 605 (2 Dept. 2005). After a careful reading of the submissions herein and in light of the contradictory directions in the Court order, dated March 7, 2005, in that the Court directed a framed issue hearing which should not have been done because of the default of all the respondents, the Court has treated the affirmation of CITTADINO' s counsel submitted herein to be an application to vacate CITTADINO' s default in answering the petition, which is granted. The Court's direction to re-serve all of the respondents in effect extended CITTADINO' s time to respond to the petition and she should have done that because she was re-served. However, in view of the confusion of the Court directing a hearing, the Court acknowledges that CITTADINO could have believed that there was no additional reason for her to respond. However, the Court notes that both counsel have made reference to the petition of INTEGON, presently pending in Supreme Court, Queens County, which wil determine whether an uninsured motorist arbitration may proceed against INTEGON as insurer of both CITTADINO and GRIFFIN. While this Court has not been advised of the details of said petition, the Court notes that the decision of Supreme Court, Queens County, a Court of coordinate jurisdiction, wil impact upon the issues raised herein and wil determine whether or not CITTADINO is an uninsured motorist or whether coverage exists with INTEGON. Accordingly, to avoid a conflicting and, possibly, erroneous determination

6 herein, it is hereby ORDERED that METLlFE' s motion to stay demanded arbitration is granted to the extent that the uninsured motorist arbitration demanded herein is temporarily stayed until after the determination of the Supreme Court, Queens County, under Index No /04 with respect to the petition of INTEGON, the primary carrier; and it is further ORDERED that METLIFE is directed to serve a copy of this order, with notice of entry, upon the Supreme Court, Queens County, directed to the Justice assigned to the INTEGON petition. All further requested relief not specifically granted is denied. This constitutes the decision and order of the co Dated: March 6, 2006 WILLIAM R. LaMARCA, J. TO: Shayne, Dachs, Stanisci, Corker & Sauer, Esqs. Attorneys for Petitioner 250 Old Country Road, 3rd Floor Mineola, NY Fox & Lefkowitz, LLP Attorneys for Respondent Melissa Cittadino 666 Old Country Road, Suite 201 Garden City, NY Bryant L. Griffin Additional Respondent Pro Se 2494 Coller Avenue Far Rockaway, NY ENTERED MAR NTY ""11A,"1 t" ""'''1''' r..rt7\ 0) UrFICF NAiWtU CO Integon National Insurance Company Additional Respondent Pro Se c/o Sheena E. Prose, VP, General Counsel & Secretary 500 West Fifth Street Winston-Salem, NC metlife-(ittadcino #03Iart75