Opinion
April 25, 1994
Appeal from the Supreme Court, Nassau County (Ain, J.).
Ordered that the order is affirmed, with costs.
The respondent was injured when a car in which she was riding as a passenger collided with a vehicle owned and operated by Enrique P. Navarro. After reaching the limits of Navarro's policy, the respondent served the petitioner, Aetna Casualty and Surety (hereinafter the carrier), with a demand for arbitration of her claim, pursuant to the underinsured motorist endorsement of her parents' insurance policy with the carrier. The carrier now appeals from the denial of its application to stay arbitration.
In seeking the stay of arbitration, the carrier argues that the respondent improperly failed to exhaust the available primary underinsured motorist coverage from the owner/operator of the vehicle in which she was a passenger before claiming excess coverage under the carrier's policy. The carrier's argument is, thus, in essence, that a condition of arbitration has not been complied with. In such a case, in contrast to a situation in which the parties never agreed to arbitrate, the carrier, by failing to move to stay arbitration within the statutory 20-day period specified in CPLR 7503, has forfeited its right to a stay on that ground (see, Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264; see also, Matter of Allstate Ins. Co. v Bonilla, 116 A.D.2d 571, 572). Accordingly, the court properly denied the carrier's untimely motion to stay arbitration. Thompson, J.P., Balletta, Rosenblatt and Copertino, JJ., concur.