Matter of Allcity/Empire Insurance Company v Eddy Massillon

Matter of Allcity/Empire Ins. Co. (Massillon) 2004 NY Slip Op 02469 [6 AD3d 151] April 1, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

In the Matter of the Arbitration between Allcity/Empire Insurance Company, Appellant, and Eddy Massillon, Respondent. Reliance National Indemnity Co. et al., Respondents.

—[*1]

Appeal from judgment, Supreme Court, New York County (Kibbie Payne, J.), entered March 7, 2003, which denied a petition to stay respondent insured's demand for arbitration and dismissed the proceeding, unanimously dismissed, without costs, as moot.

After petitioner insurer obtained an order in 2000 staying arbitration on the ground that the second motorist in the accident was insured, the parties were advised that the second motorist's insurer was insolvent and that the Security Fund was financially unable to provide coverage. Petitioner's insured then made a second demand for arbitration, and petitioner brought a second stay proceeding in Kings County, where the court, on petitioner's consent, dismissed the petition without prejudice to refiling in New York County. Petitioner then filed another stay petition in New York County. The judgment now on appeal dismissed that petition as time-barred.

In addition to bringing this appeal, petitioner successfully moved in Kings County for an order reinstating the second petition and transferring it to New York County. Accordingly, as petitioner concedes, the dispute presented by this appeal is now moot, and we therefore dismiss the appeal. There is no reason for appellate review of this moot controversy (see Matter of Century Concrete Corp. v Zoning Bd. of Appeals of Town of Saugerties, 248 AD2d 787, 788 [1998]). Concur—Buckley, P.J., Mazzarelli, Sullivan, Friedman and Gonzalez, JJ.