Opinion
April 17, 1989
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the judgment is reversed insofar as appealed from, with costs, and the provisions permitting renewal and impleader of Country-Wide Insurance Company are deleted.
The record reveals that the petitioner CNA Insurance Company (hereinafter CNA) commenced this proceeding to stay arbitration of an uninsured motorist claim on the ground that the offending vehicle was covered by a policy of automobile insurance issued by Country-Wide Insurance Company (hereinafter Country-Wide) at the time of the accident. The Supreme Court, in dismissing the petition as vague and unsubstantiated, nevertheless effectively granted CNA leave to renew the claim before the arbitrator and to implead Country-Wide as an additional party to the arbitration. This was error, as it is firmly established that under these circumstances, the appropriate forum for the resolution of the preliminary issue of insurance coverage is the court rather than arbitration (see, Matter of Aetna Cas. Sur. Co. [Bruton], 45 N.Y.2d 871, revg 58 A.D.2d 551 on dissent of Silverman, J., at App. Div.; Matter of Rosenbaum [American Sur. Co.], 11 N.Y.2d 310; Matter of National Gen. Ins. Co. [Makofske], 100 A.D.2d 905; Matter of Allstate Ins. Co. v. Jacobs, 85 A.D.2d 542; Matter of Carmichael [Govt. Employees Ins. Co.], 54 A.D.2d 140). Moreover, having exercised its opportunity to have the claim of coverage passed upon by the Supreme Court, CNA is not entitled to a second opportunity to raise the issue before the arbitrator. Mollen, P.J., Bracken, Rubin and Sullivan, JJ., concur.