New York Central Mutual Fire Insurance v. Czumaj

9 A.D.3d 833, 780 N.Y.S.2d 254, 2004 N.Y. App. Div. LEXIS 9465

Opinions

Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered April 1, 2003. The order denied the petition for an order permanently staying arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs and the petition is granted.

Memorandum: Respondent submitted claims for no-fault insurance benefits for injuries he sustained in a motor vehicle accident in September 1995. Petitioner denied respondent’s claim for lost wages on May 6, 1996 and denied the balance of respondent’s claim on September 3, 1996. Respondent served a demand for arbitration dated August 29, 2002 via Federal Express overnight mail with signature required. Petitioner thereupon commenced this proceeding seeking a permanent stay of arbitration.

We conclude that Supreme Court erred in denying the petition. We agree with petitioner that service of the demand for arbitration by Federal Express mail is jurisdictionally defective because Federal Express mail is not one of the permitted methods of service set forth in CPLR 7503 (c) (see Matter of Spychalski [Continental Ins. Cos.], 58 AD2d 193, 196 [1977], affd 45 NY2d 847 [1978]; Matter of Yak Taxi v Teke, 41 NY2d 1020 [1977]; Matter of Nationwide Ins. Enter. [Denga], 302 AD2d 929 [2003]; Matter of Cartier v County of Nassau, 281 AD2d 477 [2001]; Matter of Metropolitan Cas. & Prop. Ins. Co. v Suggs, 268 AD2d 240 [2000]; cf. CPLR 3216; Balando v American Optical Corp., 66 NY2d 750, 751 [1985]). We therefore reverse the order and grant the petition.

All concur except Green and Scudder, JJ., who dissent and vote to modify in accordance with the following memorandum.