| Matter of New York City Tr. Auth. v Powell |
| 2015 NY Slip Op 01806 |
| Decided on March 4, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 4, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
LEONARD B. AUSTIN
JEFFREY A. COHEN
BETSY BARROS, JJ.
2013-06531
2013-10488
(Index No. 19438/12)
v
Darriell Powell, et al., appellants; Tower Insurance Company, et al., proposed additional respondents.
Paul R. Pops, New York, N.Y. (Stephen Spadaro of counsel), for appellants.
Jones Jones LLC, New York, N.Y. (Agnes Neiger and Jacqueline Mancino of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of uninsured motorist claims, Darriell Powell and Aminah Abdulkarriem appeal (1) from an order of the Supreme Court, Kings County (Bunyan J.), dated April 3, 2013, which, without a hearing, granted the petition to permanently stay arbitration, and (2), as limited by their brief, from so much of an order of the same court dated September 4, 2013, as, upon reargument, adhered to the original determination.
ORDERED that the appeal from the order dated April 3, 2013, is dismissed, as that order was superseded by the order dated September 4, 2013, made upon reargument; and it is further;
ORDERED that order dated September 4, 2013, is reversed insofar as appealed from, on the law, with one bill of costs, and, upon reargument, the order dated April 3, 2013, is vacated, the petition to permanently stay arbitration is denied, and the parties are directed to proceed to arbitration.
The Supreme Court erred in determining, as a matter of law, that the appellants abandoned the demand to arbitrate their claims for uninsured motorist benefits. While more than three years elapsed between the service of the original demand and the filing of the demand with the American Arbitration Association, there is evidence in the record which is inconsistent with a finding of an intent to abandon (cf. Matter of Finkelstein [Harris], 17 AD2d 137). Moreover, we note that the demand was filed within the six-year limitations period for filing a claim for uninsured motorist benefits against a self-insurer (see Matter of New York City Tr. Auth. v Hill, 107 AD3d 897; Matter of ELRAC, Inc. v Suero, 38 AD3d 544, 545). Under the circumstances, issues of undue delay or abandonment are for the arbitrator (see New York Tel. Co. v Speciner, 55 NY2d 1002).
ENG, P.J., AUSTIN, COHEN and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court