Matter of American Tr. Ins. Co. v. Lear , 2023 NY Slip Op 01736 ( 2023 )

Matter of American Tr. Ins. Co. v Lear (2023 NY Slip Op 01736)

Matter of American Tr. Ins. Co. v Lear

2023 NY Slip Op 01736

Decided on March 30, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 30, 2023
Before: Manzanet-Daniels, J.P., Kapnick, Webber, Friedman, Rodriguez, JJ.

Index No. 23417/17 Appeal No. 17625 Case No. 2022-1365

[*1]In the Matter of American Transit Insurance Company, Petitioner-Respondent,

v

Ann Lear, Respondent-Appellant.

Mitchell Dranow, Sea Cliff, for appellant.

Baker, McEvoy & Moskovits, Brooklyn (Marjorie E. Bornes of counsel), for respondent.

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about February 15, 2022, which granted the petition to stay arbitration, unanimously affirmed, without costs.

A fair interpretation of the testimony presented at the framed-issue hearing supports the court's determination that the taxi in which respondent was a passenger was not involved in a rear-end accident as respondent claims, and that even if an accident did occur, she did not timely file a claim with petitioner insurer (see Matter of Hanover Ins. Co. v Lewis, 57 AD3d 221, 222 [1st Dept 2008]; Matter of American Tr. Ins. Co. v Wason, 50 AD3d 609, 609 [1st Dept 2008]). There is no basis to disturb the court's credibility determinations, particularly since respondent did not submit any documentary evidence, such as a police accident report or medical records, to corroborate her claim that the accident occurred on the claimed date. The taxi driver's testimony that his vehicle overheated and that another car was merely assisting him in pushing it to the side of the road to avoid blocking traffic was not so physically impossible or contrary to experience as to render it incredible and lacking in evidentiary value (compare Simmons v MDA Contr. Inc., 136 AD3d 517, 518 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 30, 2023