Matter of Allstate Ins. Co. v Howell

Matter of Allstate Ins. Co. v Howell 2017 NY Slip Op 04406 Decided on June 6, 2017 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 June 6, 2017
Renwick, J.P., Richter, Feinman, Gische, Kahn, JJ.
4186N 260647/11

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

v

Almeta Howell, Respondent-Respondent.

Bruno, Gerbino & Soriano, LLP, Melville (Nathan Shapiro of counsel), for appellant.

Law Offices of Nicole R. Kilburg, New York (Nicole R. Kilburg of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about April 14, 2016, which denied petitioner's motion to permanently stay arbitration, unanimously reversed, on the law, without costs, and the motion granted.

Petitioner seeks to permanently stay an underinsured motorist benefits arbitration proceeding brought by respondent in New York.

The motion court erred in dismissing the motion to stay as untimely. The time restrictions set forth at CPLR 7503(c) do not apply where, as here, respondent waived her right to arbitrate by initiating litigation on the same claims (see Sherrill v Grayco Bldrs., Inc., 64 NY2d 261, 272-273 [1985]; Matter of Waldman v Mosdos Bobov, Inc., 72 AD3d 983, 983 [2d Dept 2010], lv denied 15 NY3d 715 [2010]). "[O]nce waived, the right to arbitrate cannot be regained, even by the respondent's failure to [timely] seek a stay of arbitration" (Waldman, 72 AD3d at 984; see also Ryan v Kellogg Partners Inst. Servs., 58 AD3d 481, 481-482 [1st Dept 2009]).

That petitioner participated, under objection, in the arbitration is immaterial. Even if the arbitration had been completed and an award issued, the award would be subject to vacatur on the ground that the arbitrator lacked authority to conduct the arbitration (see CPLR 7511[b][1][iii]; Waldman, 72 AD3d at 984).

Respondent's argument that an evidentiary hearing is required is likewise unavailing. Respondent submitted evidence suggesting that petitioner acted in bad faith by requesting a change of venue from South Carolina to New York and then claiming that New York was not a proper venue (see Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1002-1003 [2d Dept 2013]; Matter of Liberty Mut. Ins. Co. v Mohabir, 68 AD3d 435, 435 [1st Dept 2009]). But even assuming there was an agreement between counsel to proceed in New York, it appears to have been an agreement to litigate - not arbitrate - in New York, which only points to continuing respondent's 2012 action to the extent it seeks a court declaration that petitioner is required to provide

coverage. At any rate, the agreement (to the extent there was one) was not binding on the parties because it was not memorialized in a signed writing (see CPLR 2104; Greenidge v City of New York, 179 AD2d 386, 387 [1st Dept 1992]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2017

CLERK