Progressive Cas. Ins. Co. v. Garcia, 33 N.Y.S.3d 385
Insurer brought a CPLR article 75 to permanently stay arbitration of an uninsured motorist claim. The Appellate Division reversed the lower Court saying Progressive failed to timely commence the action. Specifically, the Court said:
“ ‘CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate’ ” (Matter of State Farm Mut. Auto. Ins. Co. v. Urban, 78 A.D.3d 1064, 1065, 912 N.Y.S.2d 586, quoting Matter of Liberty Mut. Ins. Co. v. Zacharoudis, 65 A.D.3d 1353, 1353–1354, 885 N.Y.S.2d 610; see Matter of Nationwide Ins. Co. v. Singh, 6 A.D.3d 441, 443, 776 N.Y.S.2d 291). Unless a party makes an application for a stay of arbitration within the 20–day period, CPLR 7503(c) precludes it from seeking a judicial determination on its objections to arbitration (see Matter of State Farm Ins. Co. v. Williams, 50 A.D.3d 807, 808, 856 N.Y.S.2d 631; Matter of Standard Fire Ins. Co. v. Mouchette, 47 A.D.3d 636, 849 N.Y.S.2d 592). “As an exception to this rule, however, a motion to stay arbitration may be entertained when its basis is that the parties never agreed to arbitrate” (Matter of CNA Ins. Co. v. Carsley, 243 A.D.2d 474, 475, 663 N.Y.S.2d 92 [internal quotation marks, brackets, and citations omitted]; see Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264, 266, 451 N.Y.S.2d 703, 436 N.E.2d 1305; Matter of Progressive Specialty Ins. Co. v. Louis, 122 A.D.3d 637, 638, 996 N.Y.S.2d 89; Matter of AIU Ins. Co. v. Orellana, 18 A.D.3d 652, 795 N.Y.S.2d 653). Here, Progressive Casualty Insurance Company (hereinafter Progressive) commenced this proceeding to permanently stay arbitration more than 20 days after service upon it by the appellants, Francisco Garcia and Jaime Torres, of their notices of intention to arbitrate.
Contrary to the determination of the Supreme Court, Progressive’s contention that arbitration should be stayed on the ground that the appellants’ accident did not involve an adverse “motor vehicle,” but rather an all-terrain vehicle (see Matter of Progressive Northeastern Ins. Co. v. Scalamandre, 51 A.D.3d 932, 933, 858 N.Y.S.2d 327), does not relate to whether the parties had an agreement to arbitrate. Rather, that issue relates to whether certain conditions of the insurance contract were complied with so as to entitle the appellants to uninsured motorist benefits, and therefore, had to be asserted within the 20–day time limit set forth in CPLR 7503(c) (see Matter of State Farm Mut. Auto. Ins. Co. v. Urban, 78 A.D.3d at 1066, 912 N.Y.S.2d 586; Matter of AIU Ins. Co. v. Orellana, 18 A.D.3d 652, 795 N.Y.S.2d 653).
Moreover, Progressive failed to establish that the appellants’ notices of intention to arbitrate were deceptive and intended to prevent it from timely commencing the proceeding (see Matter of Standard Fire Ins. Co. v. Mouchette, 47 A.D.3d 636, 849 N.Y.S.2d 592; Matter of Nationwide Ins. Co. v. Singh, 6 A.D.3d at 444, 776 N.Y.S.2d 291). The appellants’ notices of intention to arbitrate complied with the requirements of CPLR 7503(c), *387 and the petitioner failed to proffer an affidavit by someone with personal knowledge to support its contention that the appellants’ service of the notices of intention to arbitrate upon a certain post office box address used by Progressive to process no-fault claims prevented it from timely contesting the issue of arbitrability (see Matter of Standard Fire Ins. Co. v. Mouchette, 47 A.D.3d at 636, 849 N.Y.S.2d 592; Matter of Nationwide Ins. Co. v. Singh, 6 A.D.3d at 444, 776 N.Y.S.2d 291). Indeed, Progressive submitted a copy of a letter from its own claims representative to the appellants’ counsel acknowledging receipt of the appellants’ notices well within the 20–day period.