This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A person who seeks uninsured motorist benefits after a hit-and-run must prove that the unidentified vehicle made physical contact, and must meet the policy’s notice terms, which here included reporting the accident within 24 hours. Here, the First Department reversed an order that permanently stopped a motorcyclist’s uninsured motorist arbitration and ordered a hearing, because the ambulance report gave conflicting accounts of whether another vehicle made contact, his own account said one struck his motorcycle, and there was a question whether telling the police at the scene met the reporting requirement.
The case
- Court
- Appellate Division, First Department
- Decided
- October 29, 2026
- Case
- Matter of Progressive Direct Ins. Co. v Vargas
- Citation
- 2026 NY Slip Op 06393
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The respondent, a motorcyclist, demanded arbitration of a supplemental uninsured motorist (SUM) claim with Progressive Direct Insurance Company after an accident in which, he said, an unidentified vehicle struck his motorcycle. Progressive asked the Supreme Court, Bronx County, to stay the arbitration permanently. The ambulance (EMS) report said that he almost collided with a car, panicked, and fell off his bike, but it listed the “Dispatch Reason” as “Pedestrian Struck” (2026 NY Slip Op 06393, *1). In his affirmation, he said that an “unknown vehicle” “struck [his] motorcycle” (id.). The EMS report also said that he was found on the sidewalk “with NYPD present” (id.), and he said that he gave identifying information “to the police at the scene” (id.). The court granted the petition, and he appealed.
The holding
The First Department unanimously reversed, vacated the permanent stay, and sent the matter back for a hearing, with the arbitration on hold until then. “Physical contact is a condition precedent to an arbitration based on a ‘hit and run’ accident and the burden of proof to demonstrate physical contact is upon the insured” (id., quoting its earlier decision in Matter of Country-Wide Ins. Co. v Colon). Because the EMS report “provided conflicting accounts of whether there was physical contact” (id.), and his affirmation pointed to actual contact, the court held: “A framed issue hearing is necessary to resolve these discrepancies” (id.). A hearing was also needed on “the 24-hour reporting requirement in the policy” (id.). Applying “a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator’s obtaining a written report” (id., quoting Country Wide Ins. Co. v Russo), the court held that the Supreme Court “erred in finding that no questions exist as to whether respondent complied” (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Matter of Country-Wide Ins. Co. v Colon (279 AD2d 427 [1st Dept 2001]) and Country Wide Ins. Co. v Russo (201 AD2d 368 [1st Dept 1994]).
What it means
- Uninsured motorist coverage can pay for injuries caused by a driver who is never identified, but only if the unidentified vehicle actually made contact with the injured person or the vehicle he or she was in or on. The person making the claim must prove it.
- A first responder’s report can be read more than one way. Here, the same EMS report described a near-miss and listed the dispatch reason as “Pedestrian Struck,” so the question could not be decided on paper.
- Under the court’s “very liberal interpretation” of the reporting requirement, telling the police about the accident may be enough. A written police report may not be necessary.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
Our post on hit-and-run claims advises reporting the crash to the police within 24 hours and keeping a record of the call, because, as we read the law, what counts is that you reported the crash, not whether the police wrote it up. This decision points the same way for a policy’s reporting requirement. Physical contact is the harder question: a near-miss that ends in a fall can be just as frightening, but if the other driver is never found, the hit-and-run protections may not apply. Two lessons. 1. After a hit-and-run, if your medical condition allows, tell the police and the emergency responders exactly what happened, including whether the other vehicle touched you or your vehicle, and ask for a report number. Look for cameras and witnesses; they may be the only independent proof of contact. Get legal advice promptly. 2. For lawyers, when the carrier moves to stay a SUM arbitration, read the EMS report line by line, including the dispatch reason, and put the client’s account of the contact, and of every time the client spoke with the police, in a detailed affirmation. A single line in a report can decide whether a claim gets heard.
Topics
Court: First Department. Year: 2026. Result: reversed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 29, 2026. Posted November 1, 2026.
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