Opinion
February 20, 1996
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly stayed arbitration since the appellant failed to comply with the condition precedent to coverage under the uninsured motorist endorsement of the insurance policy which required that he file a statement under oath within 90 days of the accident ( see, Schiebel v. Nationwide Mut. Ins. Co., 166 A.D.2d 520; Eveready Ins. Co. v. Saunders, 149 A.D.2d 456, 457; Matter of Home Indem. Co. v. Messana, 139 A.D.2d 513). The fact that the petitioner insurance company may have received some notice of the accident does not vitiate the breach of the policy requirement ( see, Matter of Wausau Ins. Co. v Bartz, 197 A.D.2d 627; Matter of Allcity Ins. Co. [Jimenez], 170 A.D.2d 238, affd 78 N.Y.2d 1054; Matter of Home Indem. Co. v Messana, supra).
The appellant's reliance upon Matter of Eveready Ins. Co. (Schwartzberg) ( 203 A.D.2d 101) and Matter of Eagle Ins. Co. (Chowdhury) ( 149 Misc.2d 227) to support his contention that he was not bound by the strict notice requirement in the policy because he was not a party to the insurance contract is misplaced. Unlike the Schwartzberg and Chowdhury cases where the claimant did not possess the insurance policy, the appellant in this case had access to the policy since the named insured was his wife with whom he resided.
The claim that the provisions of the insurance policy are ambiguous was not raised before the Supreme Court and is, therefore, unpreserved for appellate review ( see, Matter of American Home Assur. Co. v. Joseph, 213 A.D.2d 633; Matter of Liberty Mut. Ins. Co. v. Mancuso, 202 A.D.2d 428), and we decline to reach it in the exercise of our interest of justice jurisdiction. Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.