In Re the Arbitration Between State Farm Insurance & Banyan

Appellate Division of the Supreme Court of New York

In Re the Arbitration Between State Farm Insurance & Banyan

131 A.D.3d 747, 13 N.Y.S.3d 915

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 6, 2015

Docket519837

StatusPublished

This text of 131 A.D.3d 747 (In Re the Arbitration Between State Farm Insurance & Banyan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re the Arbitration Between State Farm Insurance & Banyan, 131 A.D.3d 747, 13 N.Y.S.3d 915 (N.Y. Ct. App. 2015).

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Opinion

Rose, J.

Appeal from an order of the Supreme Court (Mulvey, J.), entered November 8, 2013 in Tompkins County, which, among other things, denied petitioner’s amended application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

Respondents filed a demand for supplementary uninsured/ underinsured motorist arbitration based on the allegation that a vehicle operated by respondent Victor Banyan had been struck by an unidentified vehicle that left the scene of the accident. Petitioner contested respondents’ claim that the accident was caused by physical contact with the other vehicle and commenced this proceeding to stay arbitration. After a hearing, Supreme Court determined that physical contact had occurred and, among other things, denied petitioner’s request for a permanent stay of arbitration. Although petitioner then filed a notice of appeal, it did not seek an interim stay, nor did *748 it perfect the appeal within the requisite time period. Meanwhile, the parties proceeded to arbitration and respondents were awarded the full value of the policy. Only thereafter did petitioner move for an extension of time to perfect the appeal from Supreme Court’s order finding physical contact. We granted the motion, but now dismiss the appeal.

We agree with respondents that petitioner waived its right to appeal by proceeding to arbitration without seeking a stay pending determination of its appeal (see Matter of Commerce & Indus. Ins. Co. v Nester, 90 NY2d 255, 264 [1997]; Matter of One Beacon Ins. Co. v Bloch, 298 AD2d 522, 523 [2002]). Contrary to petitioner’s claim, our grant of the motion for an extension of time to perfect the appeal did not address the merits of respondents’ waiver argument and, thus, does not preclude us from considering the argument on this appeal (see Karol v Polsinello, 127 AD3d 1401, 1402-1403 [2015]; South Point, Inc. v Redman, 94 AD3d 1086, 1087 [2012]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]).

Lahtinen, J.P., McCarthy and Clark, JJ., concur.

Ordered that the appeal is dismissed, with costs.

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Rose, J.

Appeal from an order of the Supreme Court (Mulvey, J.), entered November 8, 2013 in Tompkins County, which, among other things, denied petitioner’s amended application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

Respondents filed a demand for supplementary uninsured/ underinsured motorist arbitration based on the allegation that a vehicle operated by respondent Victor Banyan had been struck by an unidentified vehicle that left the scene of the accident. Petitioner contested respondents’ claim that the accident was caused by physical contact with the other vehicle and commenced this proceeding to stay arbitration. After a hearing, Supreme Court determined that physical contact had occurred and, among other things, denied petitioner’s request for a permanent stay of arbitration. Although petitioner then filed a notice of appeal, it did not seek an interim stay, nor did *748 it perfect the appeal within the requisite time period. Meanwhile, the parties proceeded to arbitration and respondents were awarded the full value of the policy. Only thereafter did petitioner move for an extension of time to perfect the appeal from Supreme Court’s order finding physical contact. We granted the motion, but now dismiss the appeal.

We agree with respondents that petitioner waived its right to appeal by proceeding to arbitration without seeking a stay pending determination of its appeal (see Matter of Commerce & Indus. Ins. Co. v Nester, 90 NY2d 255, 264 [1997]; Matter of One Beacon Ins. Co. v Bloch, 298 AD2d 522, 523 [2002]). Contrary to petitioner’s claim, our grant of the motion for an extension of time to perfect the appeal did not address the merits of respondents’ waiver argument and, thus, does not preclude us from considering the argument on this appeal (see Karol v Polsinello, 127 AD3d 1401, 1402-1403 [2015]; South Point, Inc. v Redman, 94 AD3d 1086, 1087 [2012]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]).

Lahtinen, J.P., McCarthy and Clark, JJ., concur.

Ordered that the appeal is dismissed, with costs.

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131 A.D.3d 747, 13 N.Y.S.3d 915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-state-farm-insurance-banyan-nyappdiv-2015.

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