State Farm Mutual Automobile Insurance v. LoBue

In a proceeding pursuant to CPLR article 75 to stay arbitration, the appeal is from an order and judgment (one paper) of the Supreme Court, Queens County (Kassoff, J.), dated May 20, 1988, which, after a nonjury trial, inter alia, granted the petitioner’s application for a permanent stay of arbitration barring the respondent Frances LoBue from proceeding to arbitration against the petitioner. Ordered that the order and judgment is reversed, on the law and the facts, with costs, and the application for a permanent stay of arbitration is denied. The issue before us is whether the trial court, at the conclusion of a bench trial, properly found that the respondent administratrix failed to exercise due diligence in ascertaining the insurance status of the vehicle with which the decedent was involved in an accident. We hold, on the basis of the affirmations in support of the petition and answer, as well as the evidence adduced at trial, that the court’s determination was against the weight of the evidence (see, Strauf v Ettson Enters., 106 AD2d 737). Accordingly, we reverse the order and judgment granting the petitioner a permanent stay of arbitration. Mollen, P. J., Mangano, Kunzeman and Balletta, JJ., concur.