Opinion
519837
2015-08-06
In the Matter of the Arbitration between STATE FARM INSURANCE COMPANY, Appellant, and Victor BANYAN et al., Respondents.
Lahtinen, J.P., McCarthy and Clark, JJ., concur.
Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for appellant. Cassisi & Cassisi, P.C., Mineola (Jonathan A. Dachs of Shayne, Dachs, Sauer & Dachs, LLP, Mineola, of counsel), for respondents.
Before: LAHTINEN, J.P., McCARTHY, ROSE and CLARK, JJ.
ROSE, J.
Appeal from an order of the Supreme Court (Mulvey, J.), entered November 8, 2013 in Tompkins County, which, among other things, denied petitioner's amended application pursuant to CPLR 7503 to permanently stay arbitration between the parties.
Respondents filed a demand for supplementary uninsured/underinsured motorist arbitration based on the allegation that a vehicle operated by respondent Victor Banyan had been struck by an unidentified vehicle that left the scene of the accident. Petitioner contested respondents' claim that the accident was caused by physical contact with the other vehicle and commenced this proceeding to stay arbitration. After a hearing, Supreme Court determined that physical contact had occurred and, among other things, denied petitioner's request for a permanent stay of arbitration. Although petitioner then filed a notice of appeal, it did not seek an interim stay, nor did it perfect the appeal within the requisite time period. Meanwhile, the parties proceeded to arbitration and respondents were awarded the full value of the policy. Only thereafter did petitioner move for an extension of time to perfect the appeal from Supreme Court's order finding physical contact. We granted the motion, but now dismiss the appeal.
We agree with respondents that petitioner waived its right to appeal by proceeding to arbitration without seeking a stay pending determination of its appeal ( see Matter of Commerce & Indus. Ins. Co. v. Nester, 90 N.Y.2d 255, 264, 660 N.Y.S.2d 366, 682 N.E.2d 967 [1997]; Matter of One Beacon Ins. Co. v. Bloch, 298 A.D.2d 522, 523, 748 N.Y.S.2d 783 [2002] ). Contrary to petitioner's claim, our grant of the motion for an extension of time to perfect the appeal did not address the merits of respondents' waiver argument and, thus, does not preclude us from considering the argument on this appeal ( see Karol v. Polsinello, 127 A.D.3d 1401, 1402–1403, 8 N.Y.S.3d 447 [2015]; South Point, Inc. v. Redman, 94 A.D.3d 1086, 1087, 943 N.Y.S.2d 543 [2012]; Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765, 745 N.Y.S.2d 284 [2002] ).
ORDERED that the appeal is dismissed, with costs.