Opinion
2020–06563 Index No. 601491/20
05-10-2023
In the Matter of GREAT NORTHERN INSURANCE COMPANY, appellant, v. Steven J. SCHWARTZAPFEL, respondent.
Coffey Modica O'Meara Capowski, LLP, White Plains, NY (Sofya Uvaydov of counsel), for appellant. Law Offices of Steven Cohn, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.
Coffey Modica O'Meara Capowski, LLP, White Plains, NY (Sofya Uvaydov of counsel), for appellant.
Law Offices of Steven Cohn, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.
DECISION & ORDER In a proceeding pursuant to CPLR article 75, inter alia, to temporarily stay arbitration of an uninsured motorist claim pending completion of discovery, the petitioner appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered July 13, 2020. The order denied the petition and dismissed the proceeding as untimely.
ORDERED that the order is affirmed, with costs.
Steven J. Schwartzapfel, through counsel, sent the petitioner, Great Northern Insurance Company (hereinafter Great Northern), a demand for arbitration in a mailing containing other documents with a cover letter dated December 10, 2019. The mailing was received by Great Northern on December 13, 2019. On January 29, 2020, Great Northern commenced this proceeding, inter alia, to temporarily stay the arbitration pending completion of discovery. The Supreme Court denied the petition and dismissed the proceeding as untimely. Great Northern appeals.
Where an insurance policy contains an agreement to arbitrate, CPLR 7503(c) requires a party, once served with a notice of intention to arbitrate, to move to stay such arbitration within 20 days after service of such notice, or else he or she is precluded from objecting (see Matter of Steck [State Farm Ins. Co.], 89 N.Y.2d 1082, 1084, 659 N.Y.S.2d 839, 681 N.E.2d 1285 ; Matter of Ameriprise Ins. Co. v. Sandy, 158 A.D.3d 623, 70 N.Y.S.3d 554 ). "This limitation is strictly enforced and a court has no jurisdiction to entertain an untimely application" ( Matter of Metropolitan Prop. & Liab. Ins. Co. v. Hancock, 183 A.D.2d 831, 832, 584 N.Y.S.2d 74 ; see Matter of State Farm Ins. Co. v. Reid, 184 A.D.3d 840, 124 N.Y.S.3d 562 ). "The failure to move for a stay of arbitration within the statutory period will generally preclude objections to the arbitration after the expiration of that 20–day period" ( Matter of State Farm Mut. Auto. Ins. Co. v. Urban, 78 A.D.3d 1064, 1065, 912 N.Y.S.2d 586 ).
Despite receiving the demand to arbitrate on December 13, 2019, Great Northern did not commence this proceeding until January 29, 2020, which was beyond the 20–day statute of limitations. Contrary to Great Northern's contention, it did not establish that the demand for arbitration was deceptive and intended to prevent it from timely contesting the issue of arbitrability (see Matter of Ameriprise Ins. Co. v. Sandy, 158 A.D.3d at 625, 70 N.Y.S.3d 554 ; Matter of United Servs. Auto. Assn. Prop. & Cas. Ins. Co. v. DeRosa, 36 A.D.3d 925, 830 N.Y.S.2d 716 ; cf. Rider Ins. Co. v. Marino, 84 A.D.2d 832, 444 N.Y.S.2d 188 ). The cover letter dated December 10, 2019, clearly indicated that a demand for arbitration was included as an exhibit to the letter. Moreover, Great Northern failed to proffer an affidavit from someone with personal knowledge to support its contention that it had been deceived (see Matter of Ameriprise Ins. Co. v. Sandy, 158 A.D.3d at 625, 70 N.Y.S.3d 554 ; Matter of Nationwide Ins. Co. v. Singh, 6 A.D.3d 441, 444, 776 N.Y.S.2d 291 ).
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding as untimely.
BRATHWAITE NELSON, J.P., RIVERA, ZAYAS and VOUTSINAS, JJ., concur.