State Farm Mut. Auto. Ins. Co. v Statewide Ins. Co.

[*1] State Farm Mut. Auto. Ins. Co. v Statewide Ins. Co. 2010 NY Slip Op 50588(U) [27 Misc 3d 128(A)] Decided on March 31, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-403 Q C.

State Farm Mutual Automobile Insurance Company as assignee of H & F CONSTRUCTION, Appellant,

against

Statewide Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered January 14, 2009. The judgment denied a petition to vacate an arbitration award and dismissed the proceeding.

ORDERED that the judgment is modified by adding thereto a provision confirming the arbitration award; as so modified, the judgment is affirmed without costs. Petitioner State Farm Mutual Automobile Insurance Company commenced this proceeding seeking to vacate an arbitration award, issued by Arbitration Forums, Inc., in which the arbitrator had found for respondent Statewide Insurance Company. Petitioner argued that the matter was not subject to mandatory arbitration since, although the application for arbitration alleged that its insured's vehicle weighed over 6,500 pounds, its insured's vehicle did not weigh more than 6,500 pounds (see Insurance Law § 5105 [a]). In a judgment entered January 14, 2009, the Civil Court denied the petition and dismissed the proceeding. The instant appeal by petitioner ensued.

Since petitioner failed to apply for a stay of arbitration prior to the arbitration, it waived its claim that the matter was not arbitrable under Insurance Law § 5105 (see Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]; see also Matter of Silverman [Benmor Coats], 61 NY2d 299 [1984]; Matter of Utica Mut. Ins. Co. v Incorporated Vil. of Floral Park, 262 AD2d 565 [1999]). Consequently, the petition to vacate the arbitration award was properly denied.

However, upon denying the petition to vacate the award, the Civil Court was required, pursuant to CPLR 7511(e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). We modify the judgment accordingly. [*2]

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 31, 2010