Matter of Allstate Ins. Co. v LeGrand

Matter of Matter of Allstate Ins. Co. v LeGrand 2012 NY Slip Op 00242 Decided on January 17, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 17, 2012
Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ.
6553 115967/09

[*1]In re Allstate Insurance Company, Petitioner-Appellant,

v

Jose LeGrand, Respondent-Respondent.




Votto & Cassata, LLP, Staten Island (Christopher J. Albee of
counsel), for appellant.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered November 8, 2010, which denied the petition seeking, inter alia, a permanent stay of arbitration, and dismissed the proceeding brought pursuant to CPLR article 75, unanimously reversed, on the law, without costs, and the petition granted.

The failure to move to stay arbitration within the 20-day period specified in CPLR 7503(c) generally "constitutes a bar to judicial intrusion into arbitration proceedings" (Aetna Life & Cas. Co. v Stekardis, 34 NY2d 182, 184 [1974]; see Matter of Spychalski [Continental Ins. Cos.], 45 NY2d 847 [1978]). However, a motion to stay arbitration may be entertained outside the 20-day period when "its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with" (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266 [1982]).

It is undisputed that the subject accident occurred while the insured was driving a rental car in Mexico. The insured's automobile insurance policy provided benefits for accidents that occurred within the State of New York, "the United States, its territories or possessions, or Canada." Since the policy did not provide for coverage in the geographic area where the accident occurred, it cannot be said that the parties ever agreed to arbitrate this claim (see Matter of Allstate Ins. Co. (Richards), 178 AD2d 142 [1991], lv denied 79 NY2d 756 [1992]; cf. Matter of Fiveco, Inc. v Haber, 11 NY3d 140 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 17, 2012

CLERK