Pennsylvania General Insurance v. Mortenson

250 A.D.2d 745, 671 N.Y.S.2d 999, 1998 N.Y. App. Div. LEXIS 5785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1998
• 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, Suffolk County (Gerard J.), dated May 1, 1997, which (1) denied his motion to confirm an arbitration award dated July 15, 1996, and to dismiss the complaint, and (2) granted the plaintiff’s cross motion to vacate the arbitration award.

Ordered that the order is affirmed, with costs.

We conclude that the parties proceeded to arbitration in accordance with the provisions of the policy of insurance. Accordingly, the plaintiff did not waive or otherwise fail to invoke its right to demand a trial de novo under the terms of that policy (see, Matter of Izzo v Allstate Ins. Co., 228 AD2d 441; Nationwide Mut. Ins. Co. v Fennimore, 224 AD2d 402; cf., Matter of General Ace. Ins. Co. [Giacomazzo], 204 AD2d 236). Thus, the Supreme Court properly vacated the arbitration award. Ritter, J. P., Goldstein, McGinity and Luciano, JJ., concur.