Accordingly, Worcester "cannot be compelled to arbitrate a claim which the parties never agreed to arbitrate and for which no coverage was provided" ( Matter of Continental Ins. Co. v. Sarno, supra, at 871). To the extent that our decisions in Matter of General Acc. Ins. Co. v. Lobritto ( 240 A.D.2d 493), Matter of Aetna Life Cas. v. Boucher ( 238 A.D.2d 414), and Matter of Unigard Ins. Group v. Bothwell ( 237 A.D.2d 450) may be read to the contrary, they should no longer be followed. The appellant mistakenly relies upon the decision of the Court of Appeals in Planet ins. Co. v. Bright Bay Classic Vehicles ( 75 N.Y.2d 394) to support his position. That case involved liability coverage under a fleet insurance policy applicable to rental cars leased for less than 12 months.
See, e.g., General Accident Ins. Group v. Cirucci, 46 N.Y.2d 862, 387 N.E.2d 223, 414 N.Y.S.2d 512 (1979) ("Although, under the facts of this case a disclaimer might have been premised on the late notice furnished by the third-parties themselves to the insurer, since this ground was not raised in the letter of disclaimer, it may not be asserted now."); Fabian v. Motor Vehicle Acid. Indem. Corp., Ill A.D.2d 366, 367, 489 N.Y.S.2d 581, 582-83 (App.Div. 1985) ("Allstate, in its letter of disclaimer, failed to assert the alleged non-cooperation of its [policyholder]. Thus, Allstate cannot now assert that as a basis for its disclaimer."); Unigard Inc. Group v. Bothwell, 237 A.D.2d 450, 655 N.Y.S.2d 77, slip op. 97-2707 (App.Div., Mar 17, 1997) (failure "to make a timely denial of claim based on a policy `exclusion' precludes an insurance company from raising such an exclusion as a defense against the claim"); see also. AMRO Realty Corp., 936 F.2d at 1429-33 (carrier that sent letters declining coverage but never mentioning untimely notice as a ground was deemed to have waived late notice as a defense). There is, however, "a major limitation of the waiver doctrine."
Moreover, the Supreme Court erroneously concluded that the separate issue raised with regard to the claim of the petitioner Vincent Tedesco was academic. The arbitrator did not agree with Tedesco's assertion that absent a timely disclaimer or denial of coverage by the insurer pursuant to Insurance Law ยง 3420 (d), on the ground that he had not sustained a serious injury, he could recover for non-economic loss even in the absence of proof of a serious injury ( cf., Matter of General Acc. Ins. Co. v. Lobritto, 240 A.D.2d 493; Matter of Unigard Ins. Group v. Bothwell, 237 A.D.2d 450). Assuming arguendo that the arbitrator misconstrued the law in this regard, his conclusion was nevertheless neither irrational nor arbitrary and capricious, so as to justify vacating his award ( see, Matter of MVAIC v. Aetna Cas. Sur. Co., 89 N.Y.2d 214; Matter of Smith [Firemen's Ins. Co.], 55 N.Y.2d 224; Morris v. Government Empls. Ins. Co., 81 A.D.2d 880; Matter of Shand [Aetna Ins. Co.], 74 A.D.2d 442).
Ordered that the order is affirmed, with costs. Contrary to the contention of the petitioner insurance carrier General Accident Insurance Company (hereinafter General Accident), the policy at issue provides coverage for the event that caused the respondent Stephen Lobritto's injuries but for a policy "exclusion" (see, Planet Ins. Co. v. Bright Bay Classic Vehicles, 75 N.Y.2d 394; Zappone v. Home Ins. Co., 55 N.Y.2d 131; Matter of Unigard Ins. Group v. Bothwell, 237 A.D.2d 450). The nine-month delay by General Accident in denying the claim based on the policy exclusion precludes it from raising that exclusion as a defense to the claim, and, thus, the petition to permanently stay arbitration was properly denied on that ground (see, Zappone v. Home Ins. Co., supra; Ward v. Corbally, Gartland Rappleyea, 207 A.D.2d 342; Farmers Fire Ins. Co. v. Brighton, 142 A.D.2d 547). Mangano, P.J., Sullivan, Altman and McGinity, JJ., concur.