Matter of ROM Reins. Mgt. Co., Inc. v Continental Ins. Co., Inc.

Matter of ROM Reins. Mgt. Co., Inc. v Continental Ins. Co., Inc. 2015 NY Slip Op 04398 Decided on May 21, 2015 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 May 21, 2015
Tom, J.P., Friedman, DeGrasse, Richter, Kapnick, JJ.
15198N 654480/12

[*1] In re ROM Reinsurance Management Company, Inc., et al., Petitioners-Appellants,

v

Continental Insurance Company, Inc., (as successor to Harbor Insurance Company) Respondent-Respondent.

Nicoletti Gonson Spinner LLP, New York (Benjamin N. Gonson of counsel), for appellants.

White and Williams LLP, New York (Sarah R. Connelly of counsel), for respondent.

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered January 22, 2015, denying the petition to stay arbitration on statute of limitations grounds, and dismissing the proceeding brought pursuant to CPLR article 75, unanimously affirmed, with costs.

Petitioners participated in the arbitrator selection process, even though they were undoubtedly aware of their statute of limitations claim. Under these circumstances, the court correctly determined that petitioners participated in the arbitration and therefore are precluded from seeking a stay on statute of limitations grounds pursuant to CPLR 7503(b) (see Matter of Allstate Ins. Co. v Khait, 227 AD2d 551 [2d Dept 1996]; compare Cybex Intl. v Fuqua Enters., 246 AD2d 316, 316-317 [1998] [the petitioner did not waive its right to seek a stay of arbitration by participating in arbitral discovery and the selection of an arbitrator before it had received detailed specification of the respondent's claims]). Although petitioners have waived their ability to have the courts determine the statute of limitations issue, the issue may be determined by the arbitrators.

We have considered petitioners' remaining arguments, including that this Court had previously determined the participation issue (see 115 AD3d 480 [1st Dept 2014]), and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 21, 2015

CLERK