In re the Arbitration between Motor Vehicle Accident Indemnification Corp. & Herzberg

New York Supreme Court

In re the Arbitration between Motor Vehicle Accident Indemnification Corp. & Herzberg

42 Misc. 2d 790, 249 N.Y.S.2d 588, 1964 N.Y. Misc. LEXIS 2116

New York Supreme Court·Decided February 7, 1964·Published

Opinion

Charles J. Beckinella, J.

Motion granted on the authority of Matter of MVAIG (Lucash) (16 A D 2d 975).

There is a conflict of authority between the First and Second Departments of the Appellate Division on the question of whether a stay of arbitration should be granted in a case where a person who has invoked arbitration has not complied with certain conditions stated in the ‘ ‘ Accident Indemnification Endorsement”. (No. 3 of “Conditions” is entitled “Notice and Proof of Claim ’ ’ and requires a claimant to give details of his claim, and to submit to physical examinations.)

In Matter of MVAIG (McCabe) (19 A D 2d 349 [1st Dept.]), it was held that a claimant’s failure to submit to an examination did not warrant a stay. In Matter of MVAIG (Lucash) (supra, [2d Dept.]) arbitration was stayed “ To enable the respondent to comply with his obligation under the indorsement to submit to examination ” (16 A D 2d 975, 976). This court is obliged to follow the Second Department decision.

The court has considered petitioner’s attorney’s contention that MVAIG had to move for a stay within 10 days after service of the demand for arbitration. The statute (CPLR 7503, subd. [c]) and the cases, say that the notice of intention to arbitrate must contain a statement that the party served has 10 days to stay arbitration or be precluded from raising the objections that could warrant a stay. (See Matter of Porteck (MVAIG), 19 A D 2d 802.)

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Charles J. Beckinella, J.

Motion granted on the authority of Matter of MVAIG (Lucash) (16 A D 2d 975).

There is a conflict of authority between the First and Second Departments of the Appellate Division on the question of whether a stay of arbitration should be granted in a case where a person who has invoked arbitration has not complied with certain conditions stated in the ‘ ‘ Accident Indemnification Endorsement”. (No. 3 of “Conditions” is entitled “Notice and Proof of Claim ’ ’ and requires a claimant to give details of his claim, and to submit to physical examinations.)

In Matter of MVAIG (McCabe) (19 A D 2d 349 [1st Dept.]), it was held that a claimant’s failure to submit to an examination did not warrant a stay. In Matter of MVAIG (Lucash) (supra, [2d Dept.]) arbitration was stayed “ To enable the respondent to comply with his obligation under the indorsement to submit to examination ” (16 A D 2d 975, 976). This court is obliged to follow the Second Department decision.

The court has considered petitioner’s attorney’s contention that MVAIG had to move for a stay within 10 days after service of the demand for arbitration. The statute (CPLR 7503, subd. [c]) and the cases, say that the notice of intention to arbitrate must contain a statement that the party served has 10 days to stay arbitration or be precluded from raising the objections that could warrant a stay. (See Matter of Porteck (MVAIG), 19 A D 2d 802.)

In re the Arbitration between Motor Vehicle Accident Indemnification Corp. & Herzberg, 42 Misc. 2d 790, 249 N.Y.S.2d 588, 1964 N.Y. Misc. LEXIS 2116 (N.Y. Super. Ct. 1964).

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42 Misc. 2d 790 (In re the Arbitration between Motor Vehicle Accident Indemnification Corp. & Herzberg) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.