State Farm Mutual Automobile Insurance v. Mandala

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, Mary Mandala appeals from an amended order of the Supreme Court, Nassau County (O’Shaughnessy, J.), [473] entered May 25, 2000, which, after a hearing, granted the petition and permanently stayed arbitration. Ordered that the amended order is affirmed, with costs. The Supreme Court properly granted the petition and permanently stayed arbitration. Although the petitioner did not commence this proceeding within the statutory time period (see, CPLR 7503 [c]), an application to stay arbitration filed after the statutory time period may be entertained when, as here, it is based on a contention that the parties did not agree to arbitrate a claim for which no coverage was provided under the policy (see, Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264; Matter of United Community Ins. Co. v Gabriel, 229 AD2d 444). The appellant did not qualify as an insured under the policy and, therefore, no agreement to arbitrate existed between her and the petitioner (see, Matter of Aetna Cas. & Sur. Co. v Cartigiano, 178 AD2d 472). Santucci, J. P., Goldstein, H. Miller and Crane, JJ., concur.