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State Farm Mutual Automobile Insurance Co. v. Waite

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

IN THE MATTER OF STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT,
v.
KARL WAITE, RESPONDENT.

In a proceeding pursuant to CPLR article 75 to permanently stay the arbitration of a claim for supplementary underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 17, 2008, which denied its petition and, in effect, dismissed the proceeding as untimely.

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, HOWARD MILLER and SHERI S. ROMAN, JJ.

(Index No. 16180/08)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Contrary to the petitioner's contentions, the Supreme Court properly denied its petition to permanently stay arbitration of the respondent's underinsured motorist claim as time-barred by the 20-day statutory period set forth in CPLR 7503(c) (see Matter of Fiveco, Inc. v Haber, 11 NY3d 140, 145; Matter of Liberty Mut. Ins. Co. v Argueta, 59 AD3d 446, 447). The respondent came within the definition of an "insured" in the supplementary uninsured/underinsured motorists endorsement at issue, and the petition to stay arbitration was based upon an exclusion in that endorsement rather than a lack of coverage (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 189; Matter of Allstate Ins. Co. v Doyle, 64 AD3d 775, 776; Matter of Nova Cas. Co. v Martin, 57 AD3d 548; Matter of Allstate Ins. Co. v Arpaia, 276 AD2d 628).

RIVERA, J.P., DILLON, MILLER and ROMAN, JJ., concur.

20091215

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