In re Arbitration between General Accident Insurance & Giacomazzo

204 A.D.2d 236, 612 N.Y.S.2d 43

Opinion

—Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about November 4, 1993, which granted petitioner insurer’s motion to reargue a prior order and judgment (one paper), same court and Justice, entered on or about April 20, 1993, denying petitioner’s application for a trial de novo and granting respondent insured’s cross motion to confirm an arbitration award, and, upon reargument, adhered to the prior order and judgment, unanimously affirmed, with costs. The appeal from the order and judgment of April 20, 1993 unanimously dismissed as superseded by the appeal from the order of November 4, 1993, without costs.

We agree with the IAS Court that petitioner waived its contractual right to a trial de novo of respondent’s underinsured motorist claim in the event of an award exceeding $10,000 by acquiescing in the appointment of one arbitrator, as called for by the rules of the arbitral forum designated in respondent’s demand for arbitration, instead of three arbitrators, as called for in the policy, and by otherwise failing to advise the forum that the dispute was to be arbitrated in accordance with the policy and not the rules of the forum prescribed for binding arbitration (Matter of Liberty Mut. Ins. Co. v Lodha, 131 Misc 2d 670; cf., Sherrill v Grayco Bldrs., 64 NY2d 261, 272). Concur—Sullivan, J. P., Rosenberger, Ellerin and Kupferman, JJ.