Opinion
July 25, 1994
Appeal from the Supreme Court, Nassau County (O'Shaughnessy, J.).
Ordered that the appeal from the order dated March 12, 1993, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated January 13, 1993, is reversed, on the law, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further,
Ordered that the appellants are awarded one bill of costs.
In light of the appellants' failure to present any new facts upon their motion denominated as one for renewal and reargument, that motion was actually for reargument only and no appeal lies from the denial thereof (see, Fucci v. Town of Oyster Bay, 170 A.D.2d 646).
As to the order dated January 13, 1993, we find that the Supreme Court erred in permanently staying the uninsured motorist claim. The underlying uninsured motorist claim arises out of an August 6, 1990, accident involving the appellants' car, insured by Colonial Penn Insurance Company (hereinafter Colonial Penn), and a car owned by Eddy Valdez, insured by Peerless Insurance Company (hereinafter Peerless). On the date of the accident, the Valdez vehicle was insured, but on June 4, 1992, Peerless disclaimed coverage on the ground that Valdez did not report the claim nor the fact that he had been served with legal documents, in violation of the terms and conditions of the insurance policy. Under these circumstances, the uninsured motorist claim did not accrue until June 4, 1992, the date on which Peerless disclaimed coverage for Mr. Valdez. Therefore, the appellants' demand for arbitration dated August 24, 1992, made within 90 days of the date when Mr. Valdez's vehicle became "uninsured", was timely pursuant to the policy (see, e.g., Matter of Allstate Ins. Co. v Giordano, 108 A.D.2d 910, 911-912, affd 66 N.Y.2d 810; Matter of Allstate Ins. Co. v. Torrales, 186 A.D.2d 647). We note that this is not a situation where Colonial Penn was unaware of the underlying accident until the 1992 demand for arbitration was made (cf., Smalls v. Reliable Auto Serv., 205 A.D.2d 523).
Upon remittitur, the Supreme Court should make a determination with regard to the remaining claims raised in the petition. Bracken, J.P., Altman, Krausman and Goldstein, JJ., concur.