Matter of State Farm Ins. Co. (Banyan)

Matter of State Farm Ins. Co. (Banyan) 2015 NY Slip Op 06461 Decided on August 6, 2015 Appellate Division, Third 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 and Entered: August 6, 2015
519837

[*1] Arbitration between STATE FARM INSURANCE COMPANY, Appellant, and

and

VICTOR BANYAN et al., Respondents.

Calendar Date: May 26, 2015
Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for appellant.

Cassisi & Cassisi, PC, Mineola (Jonathan A. Dachs of Shayne, Dachs, Sauer & Dachs, LLP, Mineola, of counsel), for respondents.

Rose, J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Mulvey, J.), entered November 8, 2013 in Tompkins County, which, among other things, denied petitioner's amended application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

Respondents filed a demand for supplementary uninsured/underinsured motorist arbitration based on the allegation that a vehicle operated by respondent Victor Banyan had been struck by an unidentified vehicle that left the scene of the accident. Petitioner contested respondents' claim that the accident was caused by physical contact with the other vehicle

and commenced this proceeding to stay arbitration. After a hearing, Supreme Court determined that physical contact had occurred and, among other things, denied petitioner's request for a permanent stay of arbitration. Although petitioner then filed a notice of appeal, it did not seek an interim stay, nor did it perfect the appeal within the requisite time period. Meanwhile, the parties proceeded to arbitration and respondents were awarded the full value of the policy. Only thereafter did petitioner move for an extension of time to perfect the appeal from Supreme Court's order finding physical contact. We granted the motion, but now dismiss the appeal.

We agree with respondents that petitioner waived its right to appeal by proceeding to arbitration without seeking a stay pending determination of its appeal (see Matter of Commerce & Indus. Ins. Co. v Nester, 90 NY2d 255, 264 [1997]; Matter of One Beacon Ins. Co. v Bloch, 298 AD2d 522, 523 [2002]). Contrary to petitioner's claim, our grant of the motion for an extension of time to perfect the appeal did not address the merits of respondents' waiver argument and, thus, does not preclude us from considering the argument on this appeal (see Karol v Polsinello, 127 AD3d 1401, 1402-1403 [2015]; South Point, Inc. v Redman, 94 AD3d 1086, 1087 [2012]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]).

Lahtinen, J.P., McCarthy and Clark, JJ., concur.

ORDERED that the appeal is dismissed, with costs.