Summary
In Matter of Commerce Indus. Ins. Co. v. Nester (230 A.D.2d 795, affd 90 N.Y.2d 255), under circumstances indistinguishable from those in this case, this court dismissed an insurer's appeal, holding that the appellant "participated in the arbitration following the Supreme Court's denial of its application for a stay, and it has therefore forfeited its right to appellate review of the Supreme Court's judgment" (Matter of Commerce Indus. Ins. Co. v. Nester, supra at 795).
Summary of this case from In re One Beacon Ins. C. v. BlochOpinion
August 12, 1996
In a proceeding to stay arbitration, the petitioner appeals from a judgment of the Supreme Court, Nassau County (McCabe, J.), dated September 24, 1993, which dismissed the proceeding and directed the parties to proceed to arbitration.
Ordered that the appeal is dismissed, without costs or disbursements.
The appellant participated in the arbitration following the Supreme Court's denial of its application for a stay, and it has therefore forfeited its right to appellate review of the Supreme Court's judgment ( see, Matter of Beagle [MVAIC], 19 N.Y.2d 834; Matter of State Farm Mut. Auto. Ins. Co. v Blumen, 221 A.D.2d 548; Matter of Nationwide Mut. Ins. Co. v Rothbart, 220 A.D.2d 509). Copertino, Santucci and Hart, JJ., concur.
concur in the decision to dismiss the appeal on constraint of Matter of Beagle (MVAIC) ( 19 N.Y.2d 834) and related cases ( see, e.g., Matter of State Farm Mut. Auto. Ins. Co. v Blumen, 221 A.D.2d 548; Matter of Nationwide Mut. Ins. Co. v Rothbart, 220 A.D.2d 509).
However, in view of the fact that there exists another line of cases which stand for the general rule that coverage cannot be created by estoppel ( see, e.g., Zappone v Home Ins. Co., 55 N.Y.2d 131; Matter of Fireman's Fund Ins. Co. v Freda, 156 A.D.2d 364), that rule should be applicable in a case such as the instant one where the insurer participated in the arbitration only after unsuccessfully seeking a stay of arbitration upon the ground that no coverage existed under the policy.