Opinion
December 21, 1970
In a proceeding to stay arbitration, the appeal is from an order of the Supreme Court, Kings County, dated June 30, 1970, which denied the application without prejudice to renewal on proper papers, directed appellants to appear for oral and physical examinations, and stayed arbitration pending the examinations. Order modified, on the law and the facts, by striking from the ordering paragraphs everything following the word "denied". As so modified, order affirmed, with $10 costs and disbursements to appellants. Petitioner is the insurer of an automobile which was owned and operated by appellant Gonzalo Maldonado at a time when it was involved in a collision allegedly caused by a "hit-and-run" driver. The other appellant was a passenger in the Maldonado vehicle at that time. Appellants have asserted a claim against petitioner pursuant to the uninsured motorist indorsement of the insurance policy applicable to the Maldonado vehicle. Their attorneys served a demand for arbitration and petitioner moved for a stay. Petitioner's moving papers were served by regular mail upon appellants' attorneys, rather than by personal service or by certified or registered mail upon appellants themselves. Special Term held that such service was proper, but denied the application on other grounds without prejudice to renewal on proper papers. We disagree. In Matter of State-Wide Ins. Co. ( Lopez) ( 30 A.D.2d 694) we held that where the object of a special proceeding is to stay arbitration, the notice of petition shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. Moreover, it must be served upon the party over whom jurisdiction is sought and not upon his attorney (CPLR 7503, subd. [c]). Under the circumstances, jurisdiction was not acquired by service of the motion papers by regular mail upon appellants' attorneys. All of petitioner's contentions, including the effect of the Rules of the American Arbitration Association, were raised in the briefs in Lopez ( supra) and were considered and rejected by this court.
I am constrained to concur by reason of our prior ruling in Matter of State-Wide Ins. Co. ( Lopez) ( 30 A.D.2d 694), although I disagree with the conclusion there reached that service of an application to stay arbitration upon the attorney who served the demand for arbitration is ineffective to acquire jurisdiction over the party in whose behalf the attorney served the demand. I am in accord with the following expression by Mr. Justice EAGER in his dissenting opinion (the majority finding it unnecessary to reach the point) in Matter of Knickerbocker Ins. Co. ( Gilbert) ( 35 A.D.2d 21, 26-27): "Furthermore, the arbitration is to be had under and pursuant to the agreement of the parties as stated in the uninsured motorist indemnification endorsement and, thereby, the parties have agreed that the arbitration shall be in accordance with the rules of the American Arbitration Association. Such rules provide that the parties 'shall be deemed to have consented and shall consent that any papers, notices or process necessary or proper for the initiation or continuation of an arbitration under these Rules and for any court action in connection therewith or for the entry of judgment on any Award made thereunder may be served upon such party (a) by mail addressed to such party or his attorney at his last known address' (Accident Claims Tribunal Rules, § 30). Thus, the notice of application for the stay was properly mailed to the attorney for the respondent designated as such on the notice of intention to arbitrate and to his address as thereon stated. ( Matter of Bauer [ MVAIC], 31 A.D.2d 239.)"