Opinion
February 7, 1964
Hogan Kelleher for petitioner.
Matthias S. Sternberg for respondent.
Motion granted on the authority of Matter of MVAIC ( Lucash) ( 16 A.D.2d 975).
There is a conflict of authority between the First and Second Departments of the Appellate Division on the question of whether a stay of arbitration should be granted in a case where a person who has invoked arbitration has not complied with certain conditions stated in the "Accident Indemnification Endorsement". (No. 3 of "Conditions" is entitled "Notice and Proof of Claim" and requires a claimant to give details of his claim, and to submit to physical examinations.)
In Matter of MVAIC ( McCabe) ( 19 A.D.2d 349 [1st Dept.]), it was held that a claimant's failure to submit to an examination did not warrant a stay. In Matter of MVAIC ( Lucash) ( supra, [2d Dept.]) arbitration was stayed "To enable the respondent to comply with his obligation under the indorsement to submit to examination" ( 16 A.D.2d 975, 976). This court is obliged to follow the Second Department decision.
The court has considered petitioner's attorney's contention that MVAIC had to move for a stay within 10 days after service of the demand for arbitration. The statute (CPLR 7503, subd. [c]) and the cases, say that the notice of intention to arbitrate must contain a statement that the party served has 10 days to stay arbitration or be precluded from raising the objections that could warrant a stay. (See Matter of Porteck [ MVAIC], 19 A.D.2d 802. )