                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 2, 2015                      519923
________________________________

In the Matter of PREFERRED
   MUTUAL INSURANCE COMPANY,
                    Appellant,
      and                                    MEMORANDUM AND ORDER

GILLIAN FISHER,
                    Respondent.
________________________________


Calendar Date:    February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                              __________


      McCabe & Mack, LLP, Poughkeepsie (Betsy N. Abraham of
counsel), for appellant.

      Scarzafava Baskedis Law Firm, Oneonta (Theodoras Basdekis
of counsel), for respondent.

                              __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Becker, J.),
entered January 13, 2014 in Delaware County, which denied
petitioner's application pursuant to CPLR 7503 to permanently
stay arbitration between the parties.

      In September 2012, respondent was struck by a vehicle while
crossing a street in Brooklyn. In August 2013, she submitted a
request to petitioner, her parents' automobile liability
insurance company, for arbitration of her potential supplemental
uninsured/underinsured motorist (hereinafter SUM) insurance
coverage under her parents' policy. The parties entered into a
stipulation to temporarily stay arbitration to enable discovery.
Shortly thereafter, petitioner moved for a permanent stay of
                              -2-                519923

arbitration on the basis that respondent was not a resident of
her parents' home at the time of the accident and was therefore
excluded from SUM coverage under the terms of her parents'
insurance policy. Supreme Court denied petitioner's application
on the ground that the parties' stipulation waived the issue of
respondent's entitlement to benefits, and temporarily stayed
arbitration pending further discovery. Petitioner appeals.

      We agree with petitioner that Supreme Court erred in
concluding that the parties' stipulation waived the issue of
respondent's entitlement to SUM coverage. Although the
stipulation stated that, "[u]pon the completion of [certain]
discovery set forth [in the stipulation, petitioner] agrees to
proceed to arbitration," a stipulation cannot create coverage of
an individual, nor the obligation to arbitrate the issue of
coverage, where the individual does not meet the relevant
contractual prerequisites for coverage (cf. Fair Price Med.
Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-565 [2008];
Zappone v Home Ins. Co., 55 NY2d 131, 134-136 [1982]). Stated
differently, the stipulation cannot independently bind petitioner
to supply coverage where no such coverage exists under the
policy.

      Turning to the merits, petitioner contends that, because
respondent was not a resident of her parents' household at the
time of the accident, she is not entitled to SUM coverage. The
documents in the record – consisting of a short affidavit of
respondent, certain bank statements, communications from her
medical providers and mailing labels – are insufficient to
determine this issue, necessitating that a hearing be held
(see Matter of A. Cent. Ins. Co. v Williams, 105 AD3d 1042, 1042-
1043 [2013]; Matter of State Farm Mut. Auto. Ins. Co. v
Bonifacio, 69 AD3d 864, 864 [2010]; Matter of State Farm Mut.
Auto. Ins. Co. v Nicoletti, 11 AD3d 702, 702 [2004]).

     Lahtinen, Garry and Lynch, JJ., concur.
                              -3-                  519923

      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
