Matter of Geico Indem. Ins. Co. (Progressive Northeastern Ins. Co.)

Matter of GEICO Indem. Ins. Co. (Hopper\MProgressive Northeastern Ins. Co.) 2009 NY Slip Op 09126 [68 AD3d 1313] December 10, 2009 Appellate Division, Third 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 the Arbitration between GEICO Indemnity Insurance Company, Respondent, and Josephine Hopper et al., Respondents, and Progressive Northeastern Insurance Company, Appellant.

—[*1] Hanson & Fishbein, Albany (Paul G. Hanson of counsel), for appellant.

O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains (Montgomery L. Effinger of counsel), for GEICO Indemnity Insurance Company, respondent.

Owen Law Firm, P.L.L.C., Goshen (Patrick S. Owen of Patrick S. Owen, P.L.L.C., of counsel), for Josephine Hopper, respondent.

Malone Jr., J. Appeal from that part of an order of the Supreme Court (Meddaugh, J.), entered October 14, 2008 in Sullivan County, which, in a proceeding pursuant to CPLR 7503, granted petitioner's application to add Progressive Northeastern Insurance Company as an additional party. [*2]

Respondent Josephine Hopper was injured as a result of a purse snatching perpetrated by respondent Michael Noel, who fled the scene in a vehicle that he had borrowed from respondent Jennifer Foglia. Thereafter, Hopper demanded arbitration with petitioner, Hopper's motor vehicle insurance carrier, pursuant to the uninsured motorist provision of the policy. Petitioner, in turn, commenced this proceeding seeking to permanently stay arbitration and to add Progressive Northeastern Insurance Company as a respondent, which provided separate insurance policies to Noel and Foglia. Progressive opposed the petition, alleging that it had validly disclaimed coverage because the underlying incident was not an accident within the meaning of the policies issued to Noel and Foglia, among other reasons. By order entered October 14, 2008, Supreme Court added Progressive as a party and temporarily stayed arbitration pending a hearing to determine whether Progressive had validly disclaimed coverage. Progressive appealed from that order.[FN*]

Subsequently, a hearing was held following which Supreme Court determined that, because Progressive did not establish that it had validly disclaimed coverage, the incident was covered under Foglia's policy with Progressive. As a result, by order dated March 19, 2009, Supreme Court granted petitioner's application to permanently stay arbitration. No appeal by Progressive was taken from that order.

The right to appeal from the October 2008 intermediary order terminated upon the entry of the final order in March 2009. Accordingly, the instant appeal must be dismissed (see Matter of State Farm Mut. Auto. Liab. Ins. Co. [Connolly], 25 AD3d 910, 910-911 [2006]; Beretz v Diehl, 302 AD2d 808, 809 n 2 [2003]).

Peters, J.P., Spain, Lahtinen and Kane, JJ., concur. Ordered that the appeal is dismissed, without costs. Footnotes

Footnote *: By order entered July 31, 2009, this Court denied petitioner's motion to dismiss the appeal, without prejudice to the issues therein being raised on appeal.