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Interboro Mut. Ins. Co. v. Devone

Other Lower Courts

November 16, 2001

In the Matter of Interboro Mutual Insurance Co., Petitioner,
v.
Eric Devone, Respondent. Insurance Company of the State of Pa. et al., Proposed Additional Respondents.

Page 606

COUNSEL

Ahmuty, Demers & McManus, Albertson, for petitioner.

Harold Solomon, Rockville Centre, for Eric Devone, respondent.

Frank Poulard, proposed additional respondent pro se.

OPINION

Zelda Jonas, J.

On October 25, 2000, respondent allegedly sustained injury in a three-vehicle accident at the intersection of Henry Street and Albermarle Avenue, Hempstead, New York. At the time of the accident, Mr. Devone was a passenger in a vehicle operated by Frank Poulard, which was traveling southbound on Henry Street when it was struck by a " hit-and-run vehicle" traveling in the same direction. As a result of the impact, the Poulard vehicle was propelled head on into a vehicle traveling northbound on Henry Street operated by Elta Neptune. On June 19, 2001, respondent served a notice of intention to arbitrate an uninsured motorist claim on petitioner by certified mail, return receipt requested. It is conceded that respondent's insurance policy contains an uninsured motorist indorsement.

Petitioner seeks to permanently stay arbitration pursuant to CPLR 7503 (b) on the grounds that respondent's request for uninsured motorist benefits is improper given that both the Poulard vehicle, in which respondent was a passenger, and the Neptune vehicle were, in fact, insured and that there was no actual physical contact between the insured vehicle in which respondent was a passenger and the alleged hit-and-run vehicle. In the alternative, petitioner seeks a temporary stay pending a framed issue hearing on the issues of coverage and adding additional respondents as parties to the hearing.

The time within which any insurer must move to stay arbitration is set forth in CPLR 7503 (c) which provides, in

Page 607

pertinent part, that " [a]n application to stay arbitration must be made by the party served [with a demand for arbitration or a notice of intention to arbitrate] within twenty days after service upon him of the notice or demand, or he shall be so precluded."

The 20-day period provided in CPLR 7503 (c) is computed from the time the demand for arbitration is received not from the time it is mailed, and the day on which the demand is received is not included in the 20-day calculation. The petition to stay arbitration must be mailed within the subject 20-day period (Matter of Knickerbocker Ins. Co. [Gilbert], 28 N.Y.2d 57, 60). Failure to move to stay arbitration within this time period is a bar to judicial intrusion into arbitration proceedings (Matter of Metropolitan Prop. & Liab. Ins. Co. v Hancock, 183 A.D.2d 831, 832).

It appears from the record that the notice of intention to arbitrate was mailed at the United States Post Office in Rockville Centre on June 19, 2001 and received by petitioner on June 20, 2001. Petitioner claims to have received the subject notice on June 22, 2001; however its reply papers do not address the timeliness issue raised by respondent.

Inasmuch as the instant petition was received by the County Clerk's office on July 11, 2001 and was served on respondent's attorney by certified mail on July 12, 2001, it would ordinarily be time barred since the filing of the application 21 days after petitioner's receipt of the demand is ...


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