Factory Mut. Ins. Co. v Mutual Mar. Off., Inc.

Factory Mut. Ins. Co. v Mutual Mar. Off., Inc. 2008 NY Slip Op 09732 [57 AD3d 304] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Factory Mutual Insurance Company, as Successor in Interest to Arkwright Mutual Insurance Company, Formerly Known as Arkwright-Boston Manufacturers Mutual Insurance Company, Appellant, and Utica Mutual Insurance Company, Appellant,
v
Mutual Marine Office, Inc., Respondent.

—[*1] Meckler, Bulger Tilson Marick & Pearson LLP, Chicago, Ill. (John E. DeLascio, of the Illinois bar, admitted pro hac vice, of counsel), for Factory Mutual Insurance Company, appellant.

Hunton & Williams LLP, New York (Robert J. Morrow and Walter J. Andrews, of the District of Columbia bar, admitted pro hac vice, of counsel), for Utica Mutual Insurance Company, appellant.

Riker, Danzig, Scherer, Hyland & Peretti LLP, New York (Glenn A. Clark, of the New Jersey bar, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 30, 2008, which denied the petition to stay arbitration and granted respondent Mutual Marine's cross motion to compel arbitration, unanimously affirmed, with costs.

The court properly interpreted the arbitration clause with respect to the arbitrability of matters "not specifically covered" in the underlying agreement; the contrary interpretation proffered by the insurers would render the word "specifically" meaningless (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]). Mutual Marine's interpretation was not precluded by its unsuccessful argument in another case (see Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006]). Arbitration was not barred by the inclusion of a reformation claim (see Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 792-793 [1976]), the timeliness of which was for the arbitrators to evaluate in the absence of an explicit provision that the issue is reserved for a court of law (see Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 252-253 [2005]). [*2]

In view of the foregoing, we need not address appellants' other contentions, which are, in any event, unavailing. Concur—Friedman, J.P., McGuire, Acosta, DeGrasse and Freedman, JJ.