Preview
FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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In the Matter of the Application for a stay of
Arbitration of UNITED FINANCIAL CASUALTY Index No.
COMPANY,
Petitioner, Petition
- against –
SHAMELL CAMPBELL, MYA CAMPBELL,
and MEILANI CAMPBELL,
Respondents,
- and -
GILBERT PELISSIER, FLORENCE PELISSIER,
GEICO GENERAL INSURANCE COMPANY,
JOSE PIMENTAL SUAZO, GEICO INDEMNITY
COMPANY, KARLISHA CALLIER, GOVERNMENT
EMPLOYEES INSURANCE COMPANY,
OLAF MCJUNKINS JR, and GOVERNMENT
EMPLOYEES INSURANCE COMPANY,
Proposed Additional Respondents.
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PETITIONER, petitioning this Court, respectfully alleges:
1. This Petition is being made on behalf of petitioner, UNITED FINANCIAL
CASUALTY COMPANY, by its attorney, DAVID J. TETLAK.
2. Petitioner is a corporation duly licensed and authorized to transact
insurance business in accordance with the laws of the State of New York and maintains
offices in Nassau County, and, pursuant to CPLR §7503(c), selects Nassau County as
the venue herein as the Respondents reside in said County.
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3. Upon information and belief, Respondents, SHAMELL CAMPBELL, MYA
CAMPBELL, and MEILANI CAMPBELL, were, on the date of loss, residing in the County
of Nassau, State of New York.
4. At the time of the alleged accident, Petitioner issued to LYFT, INC., a NEW
YORK TRANSPORTATION NETWORK COMPANY COMMERCIAL AUTO POLICY, Policy No.
01240262. A copy of Petitioner's Supplementary Uninsured/Underinsured Motorist
Endorsement is annexed hereto and named Exhibit "A". The Bodily Injury and
Property Damage Liability policy limit is $1,250,000 combined single limit. The SUM
policy limit is $1,250,000 each accident. The policy contains the New York mandatory
arbitration clause.
5. Upon information and belief, the Respondents allegedly sustained
personal injuries on July 15, 2023, when the vehicle they occupied was struck by a
vehicle owned by Proposed Additional Respondent, FLORENCE PELISSIER and, and
operated by Proposed Additional Respondent, GILBERT PELISSIER. (A copy of the
Police Accident Report is annexed hereto as Exhibit “B”). The vehicle was insured by
Proposed Additional Respondent, GEICO GENERAL INSURANCE COMPANY, as indicated
by Ins. Code 639 listed on the Police Accident Report.
6. Upon information and belief, the Respondents allegedly sustained
personal injuries on July 15, 2023, when the vehicle they occupied was struck by a
vehicle owned and operated by Proposed Additional Respondent, KARLISHA CALLIER.
(A copy of the Police Accident Report is annexed hereto as Exhibit “B”). The vehicle
was insured by Proposed Additional Respondent, GOVERNMENT EMPLOYEES
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INSURANCE COMPANY, as indicated by Ins. Code 148 listed on the Police Accident
Report.
7. Upon information and belief, the Respondents allegedly sustained
personal injuries on July 15, 2023, when the vehicle they occupied was struck by a
vehicle owned and operated by Proposed Additional Respondent, OLAF MCJUNKINS JR.
(A copy of the Police Accident Report is annexed hereto as Exhibit “B.”) The vehicle
was insured by Proposed Additional Respondent, GOVERNMENT EMPLOYEES
INSURANCE COMPANY, as indicated by Ins. Code 148 listed on the Police Accident
Report.
8. Upon information and belief, the Respondents allegedly sustained
personal injuries on July 15, 2023. The vehicle in which they were passengers was
owned and operated by JOSE PIMENTAL SUAZO and insured by Proposed Additional
Respondent, GOVERNMENT EMPLOYEES INSURANCE COMPANY, as indicated by Ins.
Code 148 listed on the Police Accident Report (See Exhibit “B”).
9. Respondents asserted a Demand for Arbitration, a copy of which is
annexed hereto and named Exhibit “C,” in and by which Respondents demanded
arbitration to resolve their claims against Petitioner to recover underinsured motorist
benefits upon the grounds that the adverse vehicles were underinsured.
10. Arbitration of Respondent’s Supplementary Uninsured/Underinsured
Motorist claim should be permanently stayed on the grounds that GEICO GENERAL
INSURANCE COMPANY insured the vehicle, owned by FLORENCE PELISSIER and
operated by GILBERT PELISSIER, on the date of the accident. The investigation and
documents attached to the petition demonstrate that GEICO GENERAL INSURANCE
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COMPANY insured FLORENCE PELISSIER and GILBERT PELISSIER and the vehicle,
owned by FLORENCE PELISSIER and operated by GILBERT PELISSIER, for this accident.
11. Arbitration of Respondent’s Supplementary Uninsured/Underinsured
Motorist claim should be permanently stayed on the grounds that GEICO INDEMNITY
COMPANY insured the vehicle, owned and operated by JOSE PIMENTAL SUAZO, on the
date of the accident. The investigation and documents attached to the petition
deonstrate that GEICO INDEMNITY COMPANY insured JOSE PIMENTAL SUAZO and the
vehicle, owned and operated by JOSE PIMENTAL SUAZO, for this accident.
12. Arbitration of Respondent’s Supplementary Uninsured/Underinsured
Motorist claim should be permanently stayed on the grounds that GOVERNMENT
EMPLOYEES INSURANCE COMPANY insured the vehicle, owned and operated by
KARLISHA CALLIER, on the date of the accident. The investigation and documents
attached to the petition demonstrate that GOVERNMENT EMPLOYEES INSURANCE
COMPANY insured KARLISHA CALLIER and the vehicle, owned and operated by
KARLISHA CALLIER, for this accident.
13. Arbitration of Respondent’s Supplementary Uninsured/Underinsured
Motorist claim should be permanently stayed on the grounds that GOVERNMENT
EMPLOYEES INSURANCE COMPANY insured the vehicle, owned and operated by OLAF
MCJUNKINS JR, on the date of the accident. The investigation and documents attached
to the petition reveal that GOVERNMENT EMPLOYEES INSURANCE COMPANY insured
OLAF MCJUNKINS JR and the vehicle, owned and operated by OLAF MCJUNKINS JR, for
this accident.
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14. Since all of the involved vehicle cars were insured, the Respondents would
have to exhaust at least one of the policies before proceeding to arbitration, subject to
appliable offsets.
15. To date, there is no evidence that any of these policies have been
exhausted or paid.
16. Therefore, the Demand for SUM Arbitration, asserted, commended and/or
filed by the Respondents, is not ripe, must be deemed premature, null and/or void and,
therefore, must be permanently stayed.
17. Additionally, upon information and belief, the Respondents have asserted,
commenced, made and/or filed claims and actions against the owners and operators of
all four (4) vehicle involved in the subject accident.
18. If Respondents have exhausted one of the policies covering the Proposed
Additional Respondents, then the Petitioner is entitled to a full offset.
19. Upon information and belief, the bodily injury liability limits, for the
persons and vehicles involved in this accident, from which the Respondent’s seeking
payment, are as follows:
GILBERT PELISSIER/FLORENCE PELISSIER: $250,000/$500,000
JOSE PIMENTAL SUAZO: $1,250,000
KARLISHA CALLIER $50,000/$100,000
OLAF MCJUNKINS JR: $300,000
Total: $2,150,000
20. Therefore, the total bodily injury liability coverage limits, for all tortfeasors
in this accident, exceeds the bodily injury limits of the policy issued by Petitioner to Lyft,
Inc..
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21. As such, there would be no SUM coverage available or afforded under the
policy issued by Petitioner, to Lyft, Inc.
22. The courts have held
The “payments to other persons” that may be deducted from the
tortfeasor’s coverage limits for purposes of rendering the tortfeasor
“uninsured” under a SUM endorsement do not encompass payments made
to anyone who is an insured under the endorsement. It is important to
note that the phrase “other persons” is used elsewhere in the
endorsement to denote persons other than those insured under the policy.
The notice and proof of claim condition directs that “the insured or other
person making claim” shall give written notice of claim “under this SUM
coverage” (11 NYCRR 60–2.3[f] [CONDITIONS] [2] ). It is evident that, in
the phrase “the insured or other person,” the reference to “other person”
means someone who is not “the insured.” As each claimant here falls
within the endorsement’s definition of an “insured,” which encompasses
all passengers in the covered vehicle, claimants are not “other person[s].”
Insureds are therefore able to reduce the coverage limits of the
tortfeasor’s policy only when payments made under the tortfeasor’s policy
are to **822 ***760 individuals—such as occupants of the tortfeasor’s
vehicle, injured pedestrians or those operating a third vehicle—not
covered under the SUM endorsement. This guarantees that those who
have purchased SUM coverage will receive the same recovery they have
made available to third parties they injure—but no more.
The position of the SUM claimants and the dissent notwithstanding, this is
the only construction that is consistent with the plain language of
Insurance Law § 3420, the enabling legislation that Regulation 35–D must
conform to, and the core principle underlying SUM coverage—that
insureds can never use a SUM endorsement to obtain a greater recovery
for themselves than is provided under the policy to third parties injured by
the insureds (see Raffellini, 9 N.Y.3d at 203–204, 848 N.Y.S.2d 1, 878
N.E.2d 583; Mancuso, 93 N.Y.2d at 492, 693 N.Y.S.2d 81, 715 N.E.2d
107; Szeli, 83 N.Y.2d at 687, 613 N.Y.S.2d 113, 635 N.E.2d 282). To
demonstrate this principle, we need only look at what would occur in
Matter of Clarendon were we to adopt the claimants’ position. The four
members of the Nunez family received $50,000 under the tort-feasor’s
policy and, by each claimant characterizing the other three family
members as “other person[s],” the family now seeks to obtain an
additional $50,000 under the SUM coverage provided in their own policy,
for a total recovery of $100,000. Yet, if the Nunez vehicle was operated
negligently, causing an accident that injured four pedestrians, the total
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recovery those injured parties could obtain under the Clarendon policy
would be $50,000, the per accident limit.
Therefore, reading Insurance Law § 3420(f)(2), our well-settled
interpretation of this statute and Regulation 35–D together, we hold that
SUM coverage is not available (that is, SUM coverage cannot be triggered)
because (1) the bodily injury liability insurance coverage limits provided
under the respective tortfeasors’ policies were equal to the third-party
bodily injury liability limits of the Allstate and Clarendon policies, (2) the
payments made to the SUM claimants did not reduce the amount of the
bodily injury insurance coverage provided under the tortfeasors’ policies to
“an amount less than the third-party bodily injury liability limit of [the
Allstate and Clarendon policies]” (11 NYCRR 60–2.3[f] [INSURING
AGREEMENTS] [I][c] [3] [ii] ) and (3) allowing such additional coverage
would provide an insured/policyholder with more coverage than that
provided to an injured third party under his or her policy.
23. The Petitioner is entitled to a full set off leaving Respondents with
no “monies to recover”
24. As the adverse cars were insured, the Respondents would have to exhaust
one of the policies before proceeding to arbitration.
25. Petitioner's Uninsured Motorist Endorsement policy requires exhaustion of
policies, request for consent to settle with the tortfeasor, receipt of said consent and/or
thirty (30) days notification prior to effectuate settlement (See Exhibit “A”).
26. To date, Respondents have not demonstrated tender and/or exhaustion of
the tortfeasors’ policies and/or payment of the tortfeasor’s policies, or that consent to
settle has been requested, or that consent to settle has been provided or or that 30
days have elapsed after consent to settle was request.
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27. The policy states:
PART III-UNINSURED MOTORISTS COVERAGE
7. Other Insurance. With respect to bodily injury to an insured
while occupying a motor vehicle not owned by the named insured,
the coverage under this UM endorsement shall apply only as
excess insurance over any other similar insurance available to such
insured and applicable to such motor vehicle as primary insurance,
and this UM endorsement shall then apply only in the amount by
which the limit of liability for this coverage exceeds the applicable
limit of liability of such other insurance.
Except as provided in the foregoing paragraph, if there is other
similar insurance available to the insured and applicable to the
accident, the damages shall be deemed not to exceed the higher of
the applicable limits of liability of this coverage and such other
insurance, and we shall not be liable for a greater proportion of any
loss to which this coverage applies than the limit of liability
hereunder bears to the sum of the applicable limits of liability of
this UM endorsement and such other insurance.
28. Since the vehicle occupied by the Respondents, owned and operated by
JOSE PIMENTAL SUAZO, and insured by GEICO INDEMNITY COMPANY, was insured
pursuant to a New York Automobile Policy, issued by GEICO INDEMNITY COMPANY, the
SUM Coverage provided pursuant to such policy would be deemed primary to the
coverage issued by the Petitioner to Lyft, Inc.
29. However, if any of the Proposed Additional Respondents contend they
cancelled or reduced coverage on the insurance policy for the adverse vehicle, or claim
that they do not insure, it is respectfully requested that the Proposed Additional
Respondents be added to the proceeding and that a Framed Issue Hearing be held to
determine whether or not the cancellation was proper pursuant to the relevant
provisions of the Vehicle and Traffic Law. Therefore, the Arbitration should be
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temporarily stayed pending a Framed Issue Hearing. Allcity Ins. Co. v. Rock, 183
A.D.2d 616, 584 N.Y.S.2d 36, 37 (1st Dept. 1992).
30. Finally, Petitioner’s Uninsured Motorist Endorsement entitles Petitioner to
an Examination Under Oath of Respondents, physical examinations by physicians
selected by Petitioner, and of duly executed authorizations for Respondents’ medical
and hospital records, No-Fault records, and diagnostic films, pursuant to the Uninsured
Motorist endorsement, previously annexed hereto and Exhibit "A".
WHEREFORE, Petitioner requests judgment against Respondents as follows:
1. An Order, pursuant to CPLR §7503, permanently staying the arbitration on
the grounds that Respondents have not demonstrated any existing policy limits have
been exhausted.
2. An Order, pursuant to CPLR §7503, permanently staying the arbitration on
the grounds that Respondents have not requested, or received, consent to settle with
the tortfeasor.
3. An Order pursuant to CPLR §7503 permanently staying the Respondents’
application to proceed to Arbitration under the Mandatory Uninsured Motorist
Endorsement, since the adverse vehicles, owned, operated and insured by the Proposed
Additional Respondents, were insured on the date of loss.
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4. In the alternative, an Order pursuant to CPLR §7503 temporarily staying
the Respondents’ application to proceed to Arbitration under the Mandatory Uninsured
Motorist Endorsement, pending a Framed Issue Hearing, to determine if the adverse
vehicles were insured on the date of loss, and, if so, if the Proposed Additional
Respondents tendered the policies and adding all of the Proposed Additional
Respondents so that all parties will be before this Honorable Court.
5. An Order pursuant to CPLR §7503 permanently staying the Respondents’
application to proceed to Arbitration under the Mandatory Uninsured Motorist
Endorsement, since the Bodily Injury Liability Policy Limits, for the four involved
tortfeasor owners, operators and vehicles ($2,150,000), exceed the Bodily Injury
Liability Limits in the policy issued by Petitioner to Lyft, Inc. ($1,250,000), thereby
completely offsetting any SUM coverage provided for in the policy issued by Petitioner
to Lyft, Inc.
6. Alternatively, if it is found that the Respondent is permitted to seek
Arbitration under UNITED FINANCIAL CASUALTY COMPANY’S Supplementary
Uninsured/Underinsured Motorist Endorsement, an Order temporarily staying the
Arbitration from being held before the American Arbitration Association, to allow the
Petitioner and Respondents the time needed to fully conduct discovery. That discovery
is to consist of allowing the Petitioner the opportunity to obtain authorizations and
medical reports for all of the Respondents’ treating health-care providers, as well as
allowing the Petitioner the opportunity to conduct physical examinations and an
Examination Under Oath of the Respondent and for such other further relief as this
Court may deem just and proper.
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Dated:Bethpage, New York
May 17, 2024 SCAHILL LAW GROUP, P.C.
__________________________
DAVID J. TETLAK, ESQ.
Attorneys for Petitioner
United Financial Casualty Company
1065 Stewart Avenue – Suite 210
Bethpage, NY 11714
(516) 294-5200
Claim No. PC23-6168159-UM-1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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In the Matter of the Application for a stay of
Arbitration of UNITED FINANCIAL CASUALTY Index No.
COMPANY,
Petitioner, VERIFICATION
- against –
SHAMELL CAMPBELL, MYA CAMPBELL,
and MEILANI CAMPBELL,
Respondents,
- and -
GILBERT PELISSIER, FLORENCE PELISSIER,
GEICO GENERAL INSURANCE COMPANY,
JOSE PIMENTAL SUAZO, GEICO INDEMNITY
COMPANY, KARLISHA CALLIER, GOVERNMENT
EMPLOYEES INSURANCE COMPANY
OLAF MCJUNKINS JR, and GOVERNMENT
EMPLOYEES INSURANCE COMPANY,
Proposed Additional Respondents.
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The undersigned, an attorney duly admitted to practice law in the Courts of
the State of New York, affirms the following:
That deponent is the attorney for the Petitioner, UNITED FINANCIAL
CASUALTY COMPANY, and has read the Notice of Petition and Petition to Stay
Arbitration and knows the contents thereof.
That the same is true to deponent's knowledge.
The deponent further states that this verification is being made by deponent
and not by Petitioner because Petitioner is a corporation.
The grounds of your deponent's knowledge is based on the subject file, etc.
DATED: Bethpage, New York
May 16, 2024
__________________________
DAVID J. TETLAK, ESQ.
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Preview
FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------X In the Matter of the Application for a stay of Arbitration of UNITED FINANCIAL CASUALTY Index No. COMPANY, Petitioner, Petition - against – SHAMELL CAMPBELL, MYA CAMPBELL, and MEILANI CAMPBELL, Respondents, - and - GILBERT PELISSIER, FLORENCE PELISSIER, GEICO GENERAL INSURANCE COMPANY, JOSE PIMENTAL SUAZO, GEICO INDEMNITY COMPANY, KARLISHA CALLIER, GOVERNMENT EMPLOYEES INSURANCE COMPANY, OLAF MCJUNKINS JR, and GOVERNMENT EMPLOYEES INSURANCE COMPANY, Proposed Additional Respondents. ------------------------------------------------------------------X PETITIONER, petitioning this Court, respectfully alleges: 1. This Petition is being made on behalf of petitioner, UNITED FINANCIAL CASUALTY COMPANY, by its attorney, DAVID J. TETLAK. 2. Petitioner is a corporation duly licensed and authorized to transact insurance business in accordance with the laws of the State of New York and maintains offices in Nassau County, and, pursuant to CPLR §7503(c), selects Nassau County as the venue herein as the Respondents reside in said County. 1 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 3. Upon information and belief, Respondents, SHAMELL CAMPBELL, MYA CAMPBELL, and MEILANI CAMPBELL, were, on the date of loss, residing in the County of Nassau, State of New York. 4. At the time of the alleged accident, Petitioner issued to LYFT, INC., a NEW YORK TRANSPORTATION NETWORK COMPANY COMMERCIAL AUTO POLICY, Policy No. 01240262. A copy of Petitioner's Supplementary Uninsured/Underinsured Motorist Endorsement is annexed hereto and named Exhibit "A". The Bodily Injury and Property Damage Liability policy limit is $1,250,000 combined single limit. The SUM policy limit is $1,250,000 each accident. The policy contains the New York mandatory arbitration clause. 5. Upon information and belief, the Respondents allegedly sustained personal injuries on July 15, 2023, when the vehicle they occupied was struck by a vehicle owned by Proposed Additional Respondent, FLORENCE PELISSIER and, and operated by Proposed Additional Respondent, GILBERT PELISSIER. (A copy of the Police Accident Report is annexed hereto as Exhibit “B”). The vehicle was insured by Proposed Additional Respondent, GEICO GENERAL INSURANCE COMPANY, as indicated by Ins. Code 639 listed on the Police Accident Report. 6. Upon information and belief, the Respondents allegedly sustained personal injuries on July 15, 2023, when the vehicle they occupied was struck by a vehicle owned and operated by Proposed Additional Respondent, KARLISHA CALLIER. (A copy of the Police Accident Report is annexed hereto as Exhibit “B”). The vehicle was insured by Proposed Additional Respondent, GOVERNMENT EMPLOYEES 2 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 INSURANCE COMPANY, as indicated by Ins. Code 148 listed on the Police Accident Report. 7. Upon information and belief, the Respondents allegedly sustained personal injuries on July 15, 2023, when the vehicle they occupied was struck by a vehicle owned and operated by Proposed Additional Respondent, OLAF MCJUNKINS JR. (A copy of the Police Accident Report is annexed hereto as Exhibit “B.”) The vehicle was insured by Proposed Additional Respondent, GOVERNMENT EMPLOYEES INSURANCE COMPANY, as indicated by Ins. Code 148 listed on the Police Accident Report. 8. Upon information and belief, the Respondents allegedly sustained personal injuries on July 15, 2023. The vehicle in which they were passengers was owned and operated by JOSE PIMENTAL SUAZO and insured by Proposed Additional Respondent, GOVERNMENT EMPLOYEES INSURANCE COMPANY, as indicated by Ins. Code 148 listed on the Police Accident Report (See Exhibit “B”). 9. Respondents asserted a Demand for Arbitration, a copy of which is annexed hereto and named Exhibit “C,” in and by which Respondents demanded arbitration to resolve their claims against Petitioner to recover underinsured motorist benefits upon the grounds that the adverse vehicles were underinsured. 10. Arbitration of Respondent’s Supplementary Uninsured/Underinsured Motorist claim should be permanently stayed on the grounds that GEICO GENERAL INSURANCE COMPANY insured the vehicle, owned by FLORENCE PELISSIER and operated by GILBERT PELISSIER, on the date of the accident. The investigation and documents attached to the petition demonstrate that GEICO GENERAL INSURANCE 3 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 COMPANY insured FLORENCE PELISSIER and GILBERT PELISSIER and the vehicle, owned by FLORENCE PELISSIER and operated by GILBERT PELISSIER, for this accident. 11. Arbitration of Respondent’s Supplementary Uninsured/Underinsured Motorist claim should be permanently stayed on the grounds that GEICO INDEMNITY COMPANY insured the vehicle, owned and operated by JOSE PIMENTAL SUAZO, on the date of the accident. The investigation and documents attached to the petition deonstrate that GEICO INDEMNITY COMPANY insured JOSE PIMENTAL SUAZO and the vehicle, owned and operated by JOSE PIMENTAL SUAZO, for this accident. 12. Arbitration of Respondent’s Supplementary Uninsured/Underinsured Motorist claim should be permanently stayed on the grounds that GOVERNMENT EMPLOYEES INSURANCE COMPANY insured the vehicle, owned and operated by KARLISHA CALLIER, on the date of the accident. The investigation and documents attached to the petition demonstrate that GOVERNMENT EMPLOYEES INSURANCE COMPANY insured KARLISHA CALLIER and the vehicle, owned and operated by KARLISHA CALLIER, for this accident. 13. Arbitration of Respondent’s Supplementary Uninsured/Underinsured Motorist claim should be permanently stayed on the grounds that GOVERNMENT EMPLOYEES INSURANCE COMPANY insured the vehicle, owned and operated by OLAF MCJUNKINS JR, on the date of the accident. The investigation and documents attached to the petition reveal that GOVERNMENT EMPLOYEES INSURANCE COMPANY insured OLAF MCJUNKINS JR and the vehicle, owned and operated by OLAF MCJUNKINS JR, for this accident. 4 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 14. Since all of the involved vehicle cars were insured, the Respondents would have to exhaust at least one of the policies before proceeding to arbitration, subject to appliable offsets. 15. To date, there is no evidence that any of these policies have been exhausted or paid. 16. Therefore, the Demand for SUM Arbitration, asserted, commended and/or filed by the Respondents, is not ripe, must be deemed premature, null and/or void and, therefore, must be permanently stayed. 17. Additionally, upon information and belief, the Respondents have asserted, commenced, made and/or filed claims and actions against the owners and operators of all four (4) vehicle involved in the subject accident. 18. If Respondents have exhausted one of the policies covering the Proposed Additional Respondents, then the Petitioner is entitled to a full offset. 19. Upon information and belief, the bodily injury liability limits, for the persons and vehicles involved in this accident, from which the Respondent’s seeking payment, are as follows: GILBERT PELISSIER/FLORENCE PELISSIER: $250,000/$500,000 JOSE PIMENTAL SUAZO: $1,250,000 KARLISHA CALLIER $50,000/$100,000 OLAF MCJUNKINS JR: $300,000 Total: $2,150,000 20. Therefore, the total bodily injury liability coverage limits, for all tortfeasors in this accident, exceeds the bodily injury limits of the policy issued by Petitioner to Lyft, Inc.. 5 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 21. As such, there would be no SUM coverage available or afforded under the policy issued by Petitioner, to Lyft, Inc. 22. The courts have held The “payments to other persons” that may be deducted from the tortfeasor’s coverage limits for purposes of rendering the tortfeasor “uninsured” under a SUM endorsement do not encompass payments made to anyone who is an insured under the endorsement. It is important to note that the phrase “other persons” is used elsewhere in the endorsement to denote persons other than those insured under the policy. The notice and proof of claim condition directs that “the insured or other person making claim” shall give written notice of claim “under this SUM coverage” (11 NYCRR 60–2.3[f] [CONDITIONS] [2] ). It is evident that, in the phrase “the insured or other person,” the reference to “other person” means someone who is not “the insured.” As each claimant here falls within the endorsement’s definition of an “insured,” which encompasses all passengers in the covered vehicle, claimants are not “other person[s].” Insureds are therefore able to reduce the coverage limits of the tortfeasor’s policy only when payments made under the tortfeasor’s policy are to **822 ***760 individuals—such as occupants of the tortfeasor’s vehicle, injured pedestrians or those operating a third vehicle—not covered under the SUM endorsement. This guarantees that those who have purchased SUM coverage will receive the same recovery they have made available to third parties they injure—but no more. The position of the SUM claimants and the dissent notwithstanding, this is the only construction that is consistent with the plain language of Insurance Law § 3420, the enabling legislation that Regulation 35–D must conform to, and the core principle underlying SUM coverage—that insureds can never use a SUM endorsement to obtain a greater recovery for themselves than is provided under the policy to third parties injured by the insureds (see Raffellini, 9 N.Y.3d at 203–204, 848 N.Y.S.2d 1, 878 N.E.2d 583; Mancuso, 93 N.Y.2d at 492, 693 N.Y.S.2d 81, 715 N.E.2d 107; Szeli, 83 N.Y.2d at 687, 613 N.Y.S.2d 113, 635 N.E.2d 282). To demonstrate this principle, we need only look at what would occur in Matter of Clarendon were we to adopt the claimants’ position. The four members of the Nunez family received $50,000 under the tort-feasor’s policy and, by each claimant characterizing the other three family members as “other person[s],” the family now seeks to obtain an additional $50,000 under the SUM coverage provided in their own policy, for a total recovery of $100,000. Yet, if the Nunez vehicle was operated negligently, causing an accident that injured four pedestrians, the total 6 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 recovery those injured parties could obtain under the Clarendon policy would be $50,000, the per accident limit. Therefore, reading Insurance Law § 3420(f)(2), our well-settled interpretation of this statute and Regulation 35–D together, we hold that SUM coverage is not available (that is, SUM coverage cannot be triggered) because (1) the bodily injury liability insurance coverage limits provided under the respective tortfeasors’ policies were equal to the third-party bodily injury liability limits of the Allstate and Clarendon policies, (2) the payments made to the SUM claimants did not reduce the amount of the bodily injury insurance coverage provided under the tortfeasors’ policies to “an amount less than the third-party bodily injury liability limit of [the Allstate and Clarendon policies]” (11 NYCRR 60–2.3[f] [INSURING AGREEMENTS] [I][c] [3] [ii] ) and (3) allowing such additional coverage would provide an insured/policyholder with more coverage than that provided to an injured third party under his or her policy. 23. The Petitioner is entitled to a full set off leaving Respondents with no “monies to recover” 24. As the adverse cars were insured, the Respondents would have to exhaust one of the policies before proceeding to arbitration. 25. Petitioner's Uninsured Motorist Endorsement policy requires exhaustion of policies, request for consent to settle with the tortfeasor, receipt of said consent and/or thirty (30) days notification prior to effectuate settlement (See Exhibit “A”). 26. To date, Respondents have not demonstrated tender and/or exhaustion of the tortfeasors’ policies and/or payment of the tortfeasor’s policies, or that consent to settle has been requested, or that consent to settle has been provided or or that 30 days have elapsed after consent to settle was request. 7 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 27. The policy states: PART III-UNINSURED MOTORISTS COVERAGE 7. Other Insurance. With respect to bodily injury to an insured while occupying a motor vehicle not owned by the named insured, the coverage under this UM endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such motor vehicle as primary insurance, and this UM endorsement shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance. Except as provided in the foregoing paragraph, if there is other similar insurance available to the insured and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this coverage and such other insurance, and we shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this UM endorsement and such other insurance. 28. Since the vehicle occupied by the Respondents, owned and operated by JOSE PIMENTAL SUAZO, and insured by GEICO INDEMNITY COMPANY, was insured pursuant to a New York Automobile Policy, issued by GEICO INDEMNITY COMPANY, the SUM Coverage provided pursuant to such policy would be deemed primary to the coverage issued by the Petitioner to Lyft, Inc. 29. However, if any of the Proposed Additional Respondents contend they cancelled or reduced coverage on the insurance policy for the adverse vehicle, or claim that they do not insure, it is respectfully requested that the Proposed Additional Respondents be added to the proceeding and that a Framed Issue Hearing be held to determine whether or not the cancellation was proper pursuant to the relevant provisions of the Vehicle and Traffic Law. Therefore, the Arbitration should be 8 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 temporarily stayed pending a Framed Issue Hearing. Allcity Ins. Co. v. Rock, 183 A.D.2d 616, 584 N.Y.S.2d 36, 37 (1st Dept. 1992). 30. Finally, Petitioner’s Uninsured Motorist Endorsement entitles Petitioner to an Examination Under Oath of Respondents, physical examinations by physicians selected by Petitioner, and of duly executed authorizations for Respondents’ medical and hospital records, No-Fault records, and diagnostic films, pursuant to the Uninsured Motorist endorsement, previously annexed hereto and Exhibit "A". WHEREFORE, Petitioner requests judgment against Respondents as follows: 1. An Order, pursuant to CPLR §7503, permanently staying the arbitration on the grounds that Respondents have not demonstrated any existing policy limits have been exhausted. 2. An Order, pursuant to CPLR §7503, permanently staying the arbitration on the grounds that Respondents have not requested, or received, consent to settle with the tortfeasor. 3. An Order pursuant to CPLR §7503 permanently staying the Respondents’ application to proceed to Arbitration under the Mandatory Uninsured Motorist Endorsement, since the adverse vehicles, owned, operated and insured by the Proposed Additional Respondents, were insured on the date of loss. 9 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 4. In the alternative, an Order pursuant to CPLR §7503 temporarily staying the Respondents’ application to proceed to Arbitration under the Mandatory Uninsured Motorist Endorsement, pending a Framed Issue Hearing, to determine if the adverse vehicles were insured on the date of loss, and, if so, if the Proposed Additional Respondents tendered the policies and adding all of the Proposed Additional Respondents so that all parties will be before this Honorable Court. 5. An Order pursuant to CPLR §7503 permanently staying the Respondents’ application to proceed to Arbitration under the Mandatory Uninsured Motorist Endorsement, since the Bodily Injury Liability Policy Limits, for the four involved tortfeasor owners, operators and vehicles ($2,150,000), exceed the Bodily Injury Liability Limits in the policy issued by Petitioner to Lyft, Inc. ($1,250,000), thereby completely offsetting any SUM coverage provided for in the policy issued by Petitioner to Lyft, Inc. 6. Alternatively, if it is found that the Respondent is permitted to seek Arbitration under UNITED FINANCIAL CASUALTY COMPANY’S Supplementary Uninsured/Underinsured Motorist Endorsement, an Order temporarily staying the Arbitration from being held before the American Arbitration Association, to allow the Petitioner and Respondents the time needed to fully conduct discovery. That discovery is to consist of allowing the Petitioner the opportunity to obtain authorizations and medical reports for all of the Respondents’ treating health-care providers, as well as allowing the Petitioner the opportunity to conduct physical examinations and an Examination Under Oath of the Respondent and for such other further relief as this Court may deem just and proper. 10 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 Dated:Bethpage, New York May 17, 2024 SCAHILL LAW GROUP, P.C. __________________________ DAVID J. TETLAK, ESQ. Attorneys for Petitioner United Financial Casualty Company 1065 Stewart Avenue – Suite 210 Bethpage, NY 11714 (516) 294-5200 Claim No. PC23-6168159-UM-1 11 of 12 FILED: NASSAU COUNTY CLERK 05/16/2024 11:51 AM INDEX NO. 608557/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------X In the Matter of the Application for a stay of Arbitration of UNITED FINANCIAL CASUALTY Index No. COMPANY, Petitioner, VERIFICATION - against – SHAMELL CAMPBELL, MYA CAMPBELL, and MEILANI CAMPBELL, Respondents, - and - GILBERT PELISSIER, FLORENCE PELISSIER, GEICO GENERAL INSURANCE COMPANY, JOSE PIMENTAL SUAZO, GEICO INDEMNITY COMPANY, KARLISHA CALLIER, GOVERNMENT EMPLOYEES INSURANCE COMPANY OLAF MCJUNKINS JR, and GOVERNMENT EMPLOYEES INSURANCE COMPANY, Proposed Additional Respondents. ------------------------------------------------------------------X The undersigned, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following: That deponent is the attorney for the Petitioner, UNITED FINANCIAL CASUALTY COMPANY, and has read the Notice of Petition and Petition to Stay Arbitration and knows the contents thereof. That the same is true to deponent's knowledge. The deponent further states that this verification is being made by deponent and not by Petitioner because Petitioner is a corporation. The grounds of your deponent's knowledge is based on the subject file, etc. DATED: Bethpage, New York May 16, 2024 __________________________ DAVID J. TETLAK, ESQ. 12 of 12