Opinion
June 15, 1998
Appeal from the Supreme Court, Westchester County (DiBlasi, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the petitioner's application to permanently stay arbitration in this matter. The appellants, Anthony Sauro and Christine Sauro, waived their right to arbitrate the issue of their entitlement to damages under the uninsured motorist "coverage in their policy with the petitioner by commencing an action sounding in breach of contract (see, Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 273; De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 405). The action commenced by the Sauros did not concern claims separate from those they sought to arbitrate, nor: was their action commenced merely to preserve the status quo (see, Sherrill v. Grayco Bldrs., supra, at 273; Preiss/Breismeister Architects v. Westin Hotel Co.-Plaza Hotel Div., 56 N.Y.2d 787, 789).
O'Brien, J.P., Sullivan, Pizzuto and Joy, JJ., concur.