Opinion
Argued September 12, 1978
Decided October 19, 1978
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, MARSHALL E. LIVINGSTON, J.
George G. Mackey for appellant.
Jon Charles Dupee and Michael J. Kelly for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Appellant insurer is precluded from seeking a judicial stay of arbitration inasmuch as its application therefor was not properly served within the 20 days prescribed by statute (CPLR 7503, subd [c]). Additionally the payment by Utica Mutual Insurance Company of the full $10,000 under the standard New York uninsured motorist indorsement, while relevant to the consideration and determination of the claims of the parties by the arbitrator, is unrelated to appellant's commitment to submit such claims to arbitration. Finally, we think it impermissible for us to express any view as to "whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute". (CPLR 7501.)
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.