Opinion
06-06-2017
In re ALLSTATE INSURANCE COMPANY, Petitioner–Appellant, v. Almeta HOWELL, Respondent–Respondent.
Bruno, Gerbino & Soriano, LLP, Melville (Nathan Shapiro of counsel), for appellant. Law Offices of Nicole R. Kilburg, New York (Nicole R. Kilburg of counsel), for respondent.
Bruno, Gerbino & Soriano, LLP, Melville (Nathan Shapiro of counsel), for appellant.
Law Offices of Nicole R. Kilburg, New York (Nicole R. Kilburg of counsel), for respondent.
RENWICK, J.P., RICHTER, FEINMAN, GISCHE, KAHN, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about April 14, 2016, which denied petitioner's motion to permanently stay arbitration, unanimously reversed, on the law, without costs, and the motion granted.
Petitioner seeks to permanently stay an underinsured motorist benefits arbitration proceeding brought by respondent in New York.
The motion court erred in dismissing the motion to stay as untimely. The time restrictions set forth at CPLR 7503(c) do not apply where, as here, respondent waived her right to arbitrate by initiating litigation on the same claims (see Sherrill v. Grayco Bldrs., Inc., 64 N.Y.2d 261, 272–273, 486 N.Y.S.2d 159, 475 N.E.2d 772 [1985] ; Matter of Waldman v. Mosdos Bobov, Inc., 72 A.D.3d 983, 983, 898 N.Y.S.2d 523 [2d Dept.2010], lv. denied 15 N.Y.3d 715, 2010 WL 4823911 [2010] ). "[O]nce waived, the right to arbitrate cannot be regained, even by the respondent's failure to [timely] seek a stay of arbitration" (Waldman, 72 A.D.3d at 984, 898 N.Y.S.2d 523 ; see also Ryan v. Kellogg Partners Inst. Servs., 58 A.D.3d 481, 481–482, 871 N.Y.S.2d 108 [1st Dept.2009] ).
That petitioner participated, under objection, in the arbitration is immaterial. Even if the arbitration had been completed and an award issued, the award would be subject to vacatur on the ground that the arbitrator lacked authority to conduct the arbitration (see CPLR 7511[b][1][iii] ; Waldman, 72 A.D.3d at 984, 898 N.Y.S.2d 523 ).
Respondent's argument that an evidentiary hearing is required is likewise unavailing. Respondent submitted evidence suggesting that petitioner acted in bad faith by requesting a change of venue from South Carolina to New York and then claiming that New York was not a proper venue (see Matter of Hertz Corp. v. Holmes, 106 A.D.3d 1001, 1002–1003, 966 N.Y.S.2d 157 [2d Dept.2013] ; Matter of Liberty Mut. Ins. Co. v. Mohabir, 68 A.D.3d 435, 435, 888 N.Y.S.2d 881 [1st Dept.2009] ). But even assuming there was an agreement between counsel to proceed in New York, it appears to have been an agreement to litigate—not arbitrate—in New York, which only points to continuing respondent's 2012 action to the extent it seeks a court declaration that petitioner is required to provide coverage. At any rate, the agreement (to the extent there was one) was not binding on the parties because it was not memorialized in a signed writing (see CPLR 2104 ; Greenidge v. City of New York, 179 A.D.2d 386, 387, 578 N.Y.S.2d 157 [1st Dept.1992] ).