Opinion
Filed May 2, 2001.
Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Arbitration.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT AND KEHOE, JJ.
Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
Petitioner commenced this proceeding seeking a permanent stay of arbitration on the ground that respondents failed to provide timely written notice of their claim for supplemental uninsured motorist (SUM) benefits under a policy issued by petitioner. Supreme Court erred in ordering that petitioner's application for a stay of arbitration be referred to an arbitrator. The issue of timeliness is for the court, not the arbitrator, to decide ( see, e.g., Matter of Nationwide Ins. Co. [Brown-Young], 265 A.D.2d 918 ; Matter of Travelers Ins. Co. [DeLosh], 249 A.D.2d 924, 925-926; see generally, Matter of Rosenbaum [American Sur. Co. of N. Y.], 11 N.Y.2d 310, 313-314). Concerning the merits, we conclude that this record presents an issue of fact whether respondents gave notice of the claim "[a]s soon as practicable", as required by the policy ( see, Matter of Hartford Cas. Ins. Co. [Brody], 278 A.D.2d 830; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). We therefore reverse the order and remit the matter to Supreme Court for a hearing to determine whether respondents gave notice in a timely manner ( see, Matter of Hartford Cas. Ins. Co. [Brody], supra; Matter of State Farm Mut. Auto. Ins. Co. [Hernandez], 275 A.D.2d 989, 989-990; Matter of Travelers Ins. Co. [DeLosh], supra, at 926).