Opinion
June 12, 1995
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the orders dated December 22, 1993, and September 3, 1993, are vacated insofar as reviewed, the respondent's motion to confirm the master arbitrator's award is denied, the petition is reinstated, the petition and the affidavit in support of the petition are deemed to be a summons and complaint, the proceeding is deemed to be an action, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings on the summons and complaint.
We agree with the petitioner that, under the particular circumstances of this case, the Supreme Court should have converted its special proceeding into a plenary action for a de novo determination of the issues that had been previously submitted to arbitration (see, Insurance Law § 5106 [c]; 11 NYCRR 65.18 [i] [1]; CPLR 103 [c]; Colonial Penn Ins. Co. v D'Aguilar, 151 A.D.2d 716). To the extent that the Third Department case relied upon by the Supreme Court (Matter of Utica Mut. Ins. Co. v. Bernino, 88 A.D.2d 680) precludes the application of CPLR 103 (c) to a case of this nature, we decline to follow it. Bracken, J.P., Joy, Friedmann and Florio, JJ., concur.