Hanover Insurance v. Gaeta

Order and judgment (one paper), Supreme Court, New York County (Edward Lehner, J.), entered February 10, 1994, which denied petitioner’s application to stay an underinsured motorist arbitration demanded by respondent, unanimously affirmed, with costs. There is no merit to petitioner’s argument that since the limits of all of the offending vehicles’ policies were not exhausted before respondent demanded arbitration, the underinsured coverage in its policy with respondent was never triggered, and that its application for a stay of arbitration should therefore be entertained notwithstanding its failure to move for that relief within the 20-day period prescribed by CPLR 7503 (c). Such an argument is, in essence that a condition of arbitration has not been complied with, not that the parties never agreed to arbitrate, and accordingly does not avail petitioner (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266; Matter of Aetna Cas. & Sur. Co. v Bondy, 203 AD2d 561; see, also, Matter of Travelers Ins. Co. [Brown], 207 AD2d 672). In view of the foregoing, it is unnecessary to reach petitioner’s argument that respondent’s failure to preserve petitioner’s subrogation rights bars any recovery under the underinsured motorist provision. We have considered petitioner’s other claims and find them to be without merit. Concur— Sullivan, J. P., Rosenberger, Wallach, Nardelli and Williams, JJ.