Opinion
September 24, 1984
Raymond Schwartzberg for respondent.
Becker, Engelman Cernitz for petitioner.
Motion by respondent for reargument (CPLR 2221) of the order of this court dated January 23, 1984 which granted petitioner's application to stay arbitration is granted and upon such reargument the application to stay arbitration is denied.
After more than 20 days had elapsed following service of a demand for arbitration under uninsured motorist indorsement of the policy issued by petitioner to respondent, petitioner applied for an order staying arbitration (CPLR 7503) on the grounds that the insurance policy had been canceled prior to the occurrence of the underlying accident. Respondent argued that petitioner's application should be denied as untimely under CPLR 7503 (subd [c]). This court, citing Matter of Frame ( American Motors Ins. Co.) ( 31 A.D.2d 872), held that a claim of noncoverage due to cancellation was not barred by the failure to move within 20 days. Respondent alleges, and petitioner does not deny, that petitioner never served a copy of this court's order with notice of entry on respondent. Thus, respondent's period to seek reargument never commenced running. Meanwhile, on April 30, 1984, the Appellate Division, Second Department, held that the 20-day period of CPLR 7503 (subd [c]) does apply where the insurer seeks to stay arbitration on the grounds that the insurance policy had been canceled prior to the accident giving rise to the claim. ( Matter of Nassau Ins. Co. [ Clemente], 100 A.D.2d 969.) Petitioner argues that the court should not apply Matter of Nassau Ins. Co. ( Clemente) ( supra), but the law that was in effect on January 23, 1984, when it issued its original determination and cites Zemanek v American Motors Corp. ( 79 A.D.2d 728). The Zemanek case is inapposite since it dealt with the amendment of a statute. Here a reading of Matter of Nassau Ins. Co. ( Clemente) ( supra) demonstrates that it did not change the law but announced what the law was and had been. Accordingly, this court is constrained to conclude that it erred in its determination of January 23, 1984 and that error should now be corrected.