Worcester Insurance v. Sauro

251 A.D.2d 509, 673 N.Y.S.2d 590, 1998 N.Y. App. Div. LEXIS 6864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1998
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Anthony Sauro and Christine Sauro appeal from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated June 2, 1997, which granted the petitioner’s application.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the petitioner’s application to permanently stay arbitration in this matter. The appellants, Anthony Sauro and Christine Sauro, waived their right to arbitrate the issue of their entitlement to damages under the uninsured motorist coverage in their policy with the petitioner by commencing an action sounding in breach of contract (see, Sherrill v Grayco Bldrs., 64 NY2d 261, 273; De Sapio v Kohlmeyer, 35 NY2d 402, 405). The action commenced by the Sauros did not concern claims separate from those they sought to arbitrate, nor was their action commenced merely to preserve the status quo (see, Sherrill v Grayco Bldrs., supra, at 273; Preiss/Breismeister Architects v Westin Hotel Co. Plaza Hotel Div., 56 NY2d 787, 789). O’Brien, J. P., Sullivan, Pizzuto and Joy, JJ., concur.