Wausau Insurance v. Bartz

197 A.D.2d 627, 604 N.Y.S.2d 760, 1993 N.Y. App. Div. LEXIS 9699

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1993
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to stay arbitration, the appeal is from an order of the Supreme Court, Nassau County (Colby, J.), dated August 7, 1991, which granted the petitioner’s motion pursuant to CPLR 7503 (b) to permanently stay arbitration.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the petitioner’s motion to stay arbitration. The appellant failed to comply with the condition precedent to coverage under the uninsured motorist endorsement of the subject automobile policy, which required that she file a statement under oath within 90 days after the accident. No reasonable excuse for that failure has been provided, nor does the appellant contest the fact that the statement was not filed. The fact that the petitioner may have received some notice of the accident does not vitiate the breach of the policy requirement (see, Matter of Home Indem. Co. v Messana, 139 AD2d 513). Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.