State Farm Mutual Automobile Insurance v. Rinaldi

In a proceeding pursuant to CPLR article 75 to stay arbitration, Maria Rinaldi appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered December 20, 2004, which granted the petition and permanently stayed the arbitration.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

Where, as here, “an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a *477late notice of SUM claim before it may properly disclaim coverage” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). No such showing of prejudice was made by the carrier in this case. Nevertheless, because Rekemeyer was decided after the order appealed from was issued, we remit the matter to the Supreme Court, Nassau County, “for the carrier to have an opportunity to demonstrate prejudice,” if any (id. at 476) and, thereafter, for a new determination. Adams, J.P., Skelos, Fisher and Lunn, JJ., concur.