Opinion
June 16, 1997
Appeal from the Supreme Court, Kings County (Yoswein, J.).
Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the proceeding is dismissed.
The appellant insurance carrier did not participate in an arbitration hearing because of its concern that its participation in the arbitration, even though unwilling, might serve as a waiver of its objection to the arbitrability of the claim ( see, Matter of Beagle [MVAIC], 19 N.Y.2d 834, 835; Matter of Nationwide Mut. Ins. Co. v. Damaskinos, 227 A.D.2d 627; Matter of Nationwide Mut. Ins. Co. v. Rothbart, 220 A.D.2d 509). Since the appellant did not participate in the hearing, it did not waive its right to appeal the denial of its application for a permanent stay of arbitration. Because the stay was improperly denied, the proceeding must be dismissed ( see, Matter of Home Indem. Co. v. de Martinez, 240 A.D.2d 580 [decided herewith]; see, e.g., Matter of Hehl v. Government Empls. Ins. Co., 203 A.D.2d 572).
Bracken, J.P., Rosenblatt, Thompson and Krausman, JJ., concur.