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In re the Arbitration between New York Central Mutual Fire Insurance & Guarino

283 A.D.2d 982 Court N.Y. App. Div. Decision date 2001-05-02 English

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p. 982
In the Matter of the Arbitration between New York Central Mutual Fire Insurance Company, Respondent, and Sue Guarino et al., Appellants.
[723 NYS2d 924]

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding seeking a permanent stay of arbitration on the

p. 983
ground that respondents failed to provide timely written notice of their claim for supplemental uninsured motorist (SUM) benefits under a policy issued by petitioner. Supreme Court erred in ordering that petitioner’s application for a stay of arbitration be referred to an arbitrator. The issue of timeliness is for the court, not the arbitrator, to decide (see, e.g., Matter of Nationwide Ins. Co. [Brown-Young], 265 AD2d 918 ; Matter of Travelers Ins. Co. [DeLosh], 249 AD2d 924 , 925-926; see generally, Matter of Rosenbaum [American Sur. Co.], 11 NY2d 310 , 313-314). Concerning the merits, we conclude that this record presents an issue of fact whether respondents gave notice of the claim “[a]s soon as practicable,” as required by the policy (see, Matter of Hartford Cas. Ins. Co. [Brody], 278 AD2d 830 ; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). We therefore reverse the order and remit the matter to Supreme Court for a hearing to determine whether respondents gave notice in a timely manner (see, Matter of Hartford Cas. Ins. Co. [Brody], supra', Matter of State Farm Mut. Auto. Ins. Co. [Hernandez], 275 AD2d 989 , 989-990; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Arbitration.) Present — Pigott, Jr., P. J., Pine, Wisner, Hurlbutt and Kehoe, JJ.

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