FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS.

The Second Department, in a loss-transfer action between two insurers, noted that the failure to apply for a stay of arbitration waives any claim that the arbitrator has exceeded his/her powers:

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The petitioner’s contention that, pursuant to 11 NYCRR 65-4.11(6), its “good faith” retroactive denial of insurance coverage divested the arbitrator of jurisdiction is without merit (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977-978). Insurance Law § 5105(b) provides that arbitration is the only forum in which a loss-transfer claim may be litigated … . Moreover, “the contention that a claim proposed to be submitted to arbitration is in excess of the arbitrator’s power is waived unless raised by an application for a stay” … . By failing to apply for a stay of arbitration before arbitration, the petitioner waived its contention that the claim is not arbitrable under Insurance Law § 5105 … . Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 2017 NY Slip Op 03177, 2nd Dept 4-26-17

ARBITRATION (FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)/INSURANCE (ARBITRATION OF LOSS-TRANSFER CLAIM BETWEEN TWO INSURERS, FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)/LOSS-TRANSFER CLAIMS (INSURANCE LAW, ARBITRATION, FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)