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Factory Mutual Insurance Co. v. Mutual Marine Office

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 11, 2008

FACTORY MUTUAL INSURANCE COMPANY, ETC., PETITIONER-APPELLANT, UTICA MUTUAL INSURANCE COMPANY, RESPONDENT-APPELLANT,
v.
MUTUAL MARINE OFFICE, INC., RESPONDENT-RESPONDENT.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 30, 2008, which denied the petition to stay arbitration and granted respondent Mutual Marine's cross motion to compel arbitration, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., McGuire, Acosta, DeGrasse, Freedman, JJ.

No. 600866/08

The court properly interpreted the arbitration clause with respect to the arbitrability of matters "not specifically covered" in the underlying agreement; the contrary interpretation proffered by the insurers would render the word "specifically" meaningless (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]). Mutual Marine's interpretation was not precluded by its unsuccessful argument in another case (see Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006]). Arbitration was not barred by the inclusion of a reformation claim (see Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 792-793 [1976]), the timeliness of which was for the arbitrators to evaluate in the absence of an explicit provision that the issue is reserved for a court of law (see Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 252-253 [2005]).

In view of the foregoing, we need not address appellants' other contentions, which are, in any event, unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081211

© 1992-2008 VersusLaw Inc.



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