Aetna Casualty & Surety Co. v. Pellegrino

203 A.D.2d 457, 610 N.Y.S.2d 856, 1994 N.Y. App. Div. LEXIS 4031

Opinion

—In a proceeding, inter alia, to stay arbitration, Joseph Pellegrino appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), dated July 31, 1992, as, upon in effect granting reargument, adhered to its original determination staying arbitration.

Ordered that the order is affirmed insofar as appealed from, with costs.

In making a motion denominated as one to renew and reargue, the appellant offered only evidence that had been in his possession when he had opposed the insurance carrier’s petition. His motion was, therefore, correctly deemed a motion to reargue. Although the court stated that the motion was denied, the court, in fact, addressed its merits. Consequently, the order is appealable (see, CPLR 5517 [a] [1]). However, the appellant’s contention that he filed a timely notice of his intention to make a claim is without merit (see, Eveready Ins. Co. v Saunders, 149 AD2d 456; State Farm Mut. Auto. Ins. Co. v Romero, 109 AD2d 786; Matter of Chiro [Merchants Mut. Ins. Co.], 49 AD2d 686, affd 40 NY2d 852). Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.