Aetna Casualty & Surety Co. v. Purvis

198 A.D.2d 502, 604 N.Y.S.2d 201, 1993 N.Y. App. Div. LEXIS 11046

Opinion

—In a proceeding to stay the arbitration of an uninsured motorist claim, the appeal is from an order and judgment (one paper) of the Supreme Court, Kings County (Krausman, J.), dated July 23, 1991, which, after a hearing, denied the petition.

Ordered that the order and judgment is reversed, on the law, with costs, the petition is granted, and arbitration is permanently stayed.

The petitioner sought to stay arbitration on the ground that the respondent George Purvis had failed to comply with a condition precedent to coverage. That condition required him to file, within 90 days after the accident, a statement under oath that he, as an insured, or his legal representatives, had a cause of action against a person whose identity was unascertainable (see, Matter of Home Indem. Co. v Messana, 139 AD2d 513). Purvis offers no excuse for his failure and does not even contest the fact that the statement was not timely filed (see, Matter of Home Indem. Co. v Messana, supra). Thus, arbitration should have been permanently stayed.

In light of the foregoing, we do not reach the petitioner’s remaining contentions. Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.