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INSURER’S MOTION TO STAY ARBITRATION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY, RESPONDENT HAD WAIVED ARBITRATION BY STARTING LITIGATION, TIME RESTRICTIONS ON A MOTION FOR A STAY DID NOT APPLY.

The First Department, reversing Supreme Court, noted that the motion for a stay of arbitration brought by the insurer (petitioner) in this underinsured motorist benefits action, although untimely under the CPLR, should not have been dismissed on that ground. Respondent had waived arbitration by instigating litigation so the time restrictions on a motion to stay did not apply (even though the insurer had participated in the arbitration):

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Petitioner seeks to permanently stay an underinsured motorist benefits arbitration proceeding brought by respondent in New York.

The motion court erred in dismissing the motion to stay as untimely. The time restrictions set forth at CPLR 7503(c) do not apply where, as here, respondent waived her right to arbitrate by initiating litigation on the same claims … . “[O]nce waived, the right to arbitrate cannot be regained, even by the respondent’s failure to [timely] seek a stay of arbitration” … .

That petitioner participated, under objection, in the arbitration is immaterial. Even if the arbitration had been completed and an award issued, the award would be subject to vacatur on the ground that the arbitrator lacked authority to conduct the arbitration … . Matter of Allstate Ins. Co. v Howell, 2017 NY Slip Op 04406, 1st Dept 6-6-17

 

ARBITRATION (INSURANCE LAW, INSURER’S MOTION TO STAY ARBITRATION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY, RESPONDENT HAD WAIVED ARBITRATION BY STARTING LITIGATION, TIME RESTRICTIONS ON A MOTION FOR A STAY DID NOT APPLY)/INSURANCE LAW (ARBITRATION, INSURER’S MOTION TO STAY ARBITRATION SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY, RESPONDENT HAD WAIVED ARBITRATION BY STARTING LITIGATION, TIME RESTRICTIONS ON A MOTION FOR A STAY DID NOT APPLY)

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