Opinion
3193N.
Decided March 23, 2004.
Order, Supreme Court, New York County (Richard Braun, J.), entered May 5, 2003, which denied petitioner insurer's application to stay arbitration of respondent's underinsured motorist claim, unanimously affirmed, without costs.
Larry M. Shaw, for Petitioner-Appellant.
Mary Bergmann, for Respondent-Respondent.
Before: Nardelli, J.P., Mazzarelli, Saxe, Friedman, JJ.
The application to stay arbitration was properly denied on the ground that it was not made within 20 days after service of respondent's demand (CPLR 7503[c]). It does not avail petitioner that it timely commenced a proceeding to stay the arbitration in Queens County, that the Queens County court ordered to be transferred to New York County, and that it instituted the instant stay proceeding only because of ministerial difficulties it encountered in effectuating the transfer ( cf. Matter of Metropolitan Prop. Cas. Ins. Co. v. Coping, 179 A.D.2d 499). In any event, as the motion court also held, the petition lacks merit. Respondent notified petitioner of the accident immediately after it happened, in connection with a no-fault claim, but could not at that time, or at any other time prior to the grant of summary judgment in the personal injury action respondent had brought, could she have known that the only defendant in that action with significant insurance coverage, the driver of the car in which she was a passenger and petitioner's insured, would be absolved of liability, and that she therefore had a viable underinsurance claim against petitioner. Under such circumstances, it was the grant of summary judgment to defendant's insured in the personal injury action that marked the commencement of respondent's obligation to give written notice of claim "as soon as practicable" ( see Matter of Allstate Ins. Co. v. Sala, 226 A.D.2d 172, lv denied 89 N.Y.2d 801).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.