Matter of State Farm Mut. Auto. Ins. Co. v Waite

Matter of State Farm Mut. Auto. Ins. Co. v Waite 2009 NY Slip Op 09478 [68 AD3d 1006] December 15, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of State Farm Mutual Automobile Insurance Company, Appellant,
v
Karl Waite, Respondent.

—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Gilbert J. Hardy of counsel), for appellant. Allen L. Rothenberg (Scott J. Rothenberg and Louis A. Badolato, Roslyn Harbor, N.Y., of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay the arbitration of a claim for supplementary underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 17, 2008, which denied its petition and, in effect, dismissed the proceeding as untimely.

Ordered that the order is affirmed, with costs.

Contrary to the petitioner's contentions, the Supreme Court properly denied its petition to permanently stay arbitration of the respondent's underinsured motorist claim as time-barred by the 20-day statutory period set forth in CPLR 7503 (c) (see Matter of Fiveco, Inc. v Haber, 11 NY3d 140, 145 [2008]; Matter of Liberty Mut. Ins. Co. v Argueta, 59 AD3d 446, 447 [2009]). The respondent came within the definition of an "insured" in the supplementary uninsured/underinsured motorists endorsement at issue, and the petition to stay arbitration was based upon an exclusion in that endorsement rather than a lack of coverage (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 189 [2000]; Matter of Allstate Ins. Co. v Doyle, 64 AD3d 775, 776 [2009]; Matter of Nova Cas. Co. v Martin, 57 AD3d 548 [2008]; Matter of Allstate Ins. Co. v Arpaia, 276 AD2d 628 [2000]). Rivera, J.P., Dillon, Miller and Roman, JJ., concur.