Opinion
September 25, 1995
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the judgment is reversed, with costs, and the proceeding is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.
Two arguments were raised in the Supreme Court in connection with the petition to permanently stay arbitration. The first, raised by the petitioner, was that an earlier arbitration proceeding between the parties barred the instant proceeding. The second, raised by Jose Bonilla in his answer to the petition, is that the petition must be dismissed because the petitioner did not comply with CPLR 306-b (a).
Turning to the petitioner's argument, we find that no rational arbitrator could issue an award in the appellant's favor now, in light of the prior unimpeached arbitration award in Aetna's favor. We also find that Aetna agreed to submit to no more than one single arbitration relative to the one single injury claimed to have been caused by the one single uninsured motor vehicle involved in this case. Any successive arbitration proceeding between the same parties, and concerning the identical circumstances as those reviewed in the prior arbitration would violate the parties' contract as well as principles of res judicata. Under these circumstances, the granting of a stay was proper (see, Matter of Klein Assocs. v Goldenberg, 183 A.D.2d 717; Matter of Cine-Source, Inc. v Burrows, 180 A.D.2d 592, 593; Protocom Devices v Figueroa, 173 A.D.2d 177; Matter of Intercontinental Packaging Co. v China Natl. Cereals, 159 A.D.2d 190; Matter of Prudential Prop. Cas. Ins. Co. v Green, 146 A.D.2d 699; Matter of David Assocs. [Bevona], 109 A.D.2d 623; City of Rochester v AFSCME, Local 1635, 54 A.D.2d 257; cf., Matter of City School Dist. v Tonawanda Educ. Assn., 63 N.Y.2d 846; Board of Educ. v Patchogue-Medford Congress of Teachers, 48 N.Y.2d 812, 813; Matter of Board of Educ. [Florida Teachers Assn.], 104 A.D.2d 411, affd 64 N.Y.2d 822; Vilceus v North Riv. Ins. Co., 150 A.D.2d 769). This is true even though the judgment confirming the prior award had been vacated for procedural reasons (see, e.g., Katz v Kar, 192 A.D.2d 695; Protocom Devices v Figueroa, supra; County of Rockland v Aetna Cas. Sur. Co., 129 A.D.2d 606; Hilowitz v Hilowitz, 85 A.D.2d 621; cf., Matter of Allcity Ins. Co. [Vitucci], 151 A.D.2d 430, affd 74 N.Y.2d 879; Gibe v Hajek, 166 A.D.2d 502).
However, the judgment appealed from, in determining that the earlier arbitration award was entitled to preclusive effect, failed to address the parties' factual dispute with respect to dismissal of the petition for the petitioner's failure to comply with CPLR 306-b (a). Therefore, the judgment must be reversed and the matter remitted for further proceedings to determine whether the proceeding to stay arbitration was properly commenced. O'Brien, J.P., Santucci, Joy and Goldstein, JJ., concur.