Opinion
May 17, 1999
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The petitioners waived their contention that the arbitrator exceeded her power by proceeding with arbitration where coverage was disputed by failing to assert it either in their petition for a stay or in their motion to vacate the arbitration award ( see, Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 309). In any event, the policy issued by the petitioners explicitly allows the issue of coverage to be determined by arbitration where the parties fail to agree.
The Supreme Court properly denied the petitioners' motion to vacate the arbitration award. The question of whether the arbitration hearing was held in violation of the American Arbitration Association (hereinafter the AAA) rule concerning the suspension of arbitration where a motion contesting coverage is filed within 30 days, was one for the arbitrator to decide to the extent that this rule, is incorporated by reference into the parties' arbitration agreement ( see, Matter of Kingsley v. Redevco Corp., 61 N.Y.2d 714).
Although the petitioners commenced a proceeding in the Supreme Court to stay arbitration, they never obtained a temporary restraining order to prevent the arbitration from proceeding pending its determination. As a result, the petition did not require the arbitrator to adjourn the hearing, and the arbitration award was not the, product of misconduct ( see, Ahern Painting Contrs. v. District Council, 141 A.D.2d 791).
Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.