Opinion
June 26, 1989
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is affirmed, with costs.
The defendant has not established that its default was excusable and that it has a meritorious defense (CPLR 5015 [a]; Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650). The defendant's claim that its default was due to law office failure is unpersuasive in light of its conduct throughout these proceedings. It defaulted not only in responding to the application to confirm the arbitrator's award, but it also failed to appear at the earlier arbitration hearing. The defendant's conduct is consistent with its assertion in its brief on this appeal, that it "felt no obligation to reply" to the application to confirm because it believed that there was no arbitration agreement in existence. Thus, it appears that the defendant's default was intentional and, therefore, inexcusable (see, Perellie v. Crimson's Rest., 108 A.D.2d 903, 904).
Additionally, the defendant cannot establish a meritorious defense. Where, as here, the issue is whether a preexisting insurance policy which contained an agreement to arbitrate had been canceled prior to the accident, the defendant's failure to move to stay arbitration within 20 days after service upon it of the demand for arbitration bars it from obtaining such relief (see, CPLR 7503 [c]; Matter of Allstate Ins. Co. v. Bonilla, 116 A.D.2d 571, 572; see also, Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 307). Thompson, J.P., Rubin, Sullivan and Rosenblatt, JJ., concur.