Nationwide Mutual Insurance v. Fennimore

224 A.D.2d 402, 638 N.Y.S.2d 328, 1996 N.Y. App. Div. LEXIS 853

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1996
• Status: Published

Opinion

—In an action to enforce a contractual right to a trial de novo, the defendant appeals from an order of the Supreme Court, Queens County (Friedmann, J.), dated November 16, 1993, which denied her motion, inter alia, to dismiss the action and to confirm an arbitrator’s award.

Ordered that the order is affirmed, with costs.

The Appellant’s contention that the plaintiff waived its right to a trial de novo under the facts presented in this case is without merit (see Allstate Ins. Co. v Jacobs, 208 AD2d 578; Matter of Nationwide Mut. Ins. Co. v Alvarez, 207 AD2d 401). Unlike the parties in the cases of Matter of Marciano v General Acc. Ins. Co. (220 AD2d 748) and Matter of Eckart v Aetna Cas. & Sur. Co. (208 AD2d 533), the parties in this case proceeded to arbitration in accordance with the policy provisions and, therefore, the plaintiff could invoke its right under the policy to a trial de novo.

The appellant’s remaining contentions are without merit. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.