Material Damage Adjustment Corp. v. Eliphene

Appellate Division of the Supreme Court of New York

Material Damage Adjustment Corp. v. Eliphene

261 A.D.2d 545, 690 N.Y.S.2d 601, 1999 N.Y. App. Div. LEXIS 5403

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

DecidedMay 17, 1999

StatusPublished

This text of 261 A.D.2d 545 (Material Damage Adjustment Corp. v. Eliphene) 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.

Bluebook

Material Damage Adjustment Corp. v. Eliphene, 261 A.D.2d 545, 690 N.Y.S.2d 601, 1999 N.Y. App. Div. LEXIS 5403 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In a proceeding pursuant to CPLR article 75 to stay arbitration, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), dated April 8, 1998, as, upon reargument of a prior order of the same court, dated January 5, 1998, denying their motion to vacate an arbitration award, adhered to the original determination.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The petitioners waived their contention that the arbitrator exceeded her power by proceeding with arbitration where coverage was disputed by failing to assert it either in their petition for a stay or in their motion to vacate the arbitration [546]*546award (see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 309). In any event, the policy issued by the petitioners explicitly allows the issue of coverage to be determined by arbitration where the parties fail to agree.

The Supreme Court properly denied the petitioners’ motion to vacate the arbitration award. The question of whether the arbitration hearing was held in violation of the American Arbitration Association (hereinafter the AAA) rule concerning the suspension of arbitration where a motion contesting coverage is filed within 30 days, was one for the arbitrator to decide to the extent that this rule is incorporated by reference into the parties’ arbitration agreement (see, Matter of Kingsley v Redevco Corp., 61 NY2d 714).

Although the petitioners commenced a proceeding in the Supreme Court to stay arbitration, they never obtained a temporary restraining order to prevent the arbitration from proceeding pending its determination. As a result, the petition did not require the arbitrator to adjourn the hearing, and the arbitration award was not the product of misconduct (see, Ahern Painting Contrs. v District Council, 141 AD2d 791). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.

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—In a proceeding pursuant to CPLR article 75 to stay arbitration, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), dated April 8, 1998, as, upon reargument of a prior order of the same court, dated January 5, 1998, denying their motion to vacate an arbitration award, adhered to the original determination.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The petitioners waived their contention that the arbitrator exceeded her power by proceeding with arbitration where coverage was disputed by failing to assert it either in their petition for a stay or in their motion to vacate the arbitration [546]*546award (see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 309). In any event, the policy issued by the petitioners explicitly allows the issue of coverage to be determined by arbitration where the parties fail to agree.

The Supreme Court properly denied the petitioners’ motion to vacate the arbitration award. The question of whether the arbitration hearing was held in violation of the American Arbitration Association (hereinafter the AAA) rule concerning the suspension of arbitration where a motion contesting coverage is filed within 30 days, was one for the arbitrator to decide to the extent that this rule is incorporated by reference into the parties’ arbitration agreement (see, Matter of Kingsley v Redevco Corp., 61 NY2d 714).

Although the petitioners commenced a proceeding in the Supreme Court to stay arbitration, they never obtained a temporary restraining order to prevent the arbitration from proceeding pending its determination. As a result, the petition did not require the arbitrator to adjourn the hearing, and the arbitration award was not the product of misconduct (see, Ahern Painting Contrs. v District Council, 141 AD2d 791). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.

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Bluebook (online)

261 A.D.2d 545, 690 N.Y.S.2d 601, 1999 N.Y. App. Div. LEXIS 5403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/material-damage-adjustment-corp-v-eliphene-nyappdiv-1999.

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