dissents, in part, and votes to dismiss the appeal from the order dated October 17, 2003, reverse the order dated December 12, 2003, insofar as appealed from, vacate the order dated October 17, 2003, deny the petition, and dismiss the proceeding, with the following memorandum: In my opinion, the petition to stay arbitration of an uninsured motorist claim should have been denied. As stated by the majority, Vehicle and Traffic Law § 313 (2) (a) requires that an insurer file a notice of termination with the Commissioner of the New York State Department of Motor Vehicles within 30 days following the effective date of cancellation. In the case at bar, the Supreme Court concluded, and the majority agrees, that Progressive Casualty Insurance Company (hereinafter Progressive) did not comply with this provision and thus it did not effectively cancel the subject policy of insurance prior to the date of the accident.
However, during the time period in question, the Department of Motor Vehicles (hereinafter the DMfV) was in the process of converting its record-keeping system. In conjunction with converting this system of electronic reporting, the DMV issued certain regulations which stated in pertinent part that the “DMV shall not accept old format FSCP tapes [the prior system] after noon on May 19, 2000” and there “will be a period between FSCP tape cut-off and initial loading where electronic transactions, including cancellations, cannot be submitted by an insurance company or servicing agent to DMV” (15 NYCRR 34.7 [a] [emphasis added]). The regulations further stated that “[s]ince IIES [the new system] begins with the reporting of insured policyholders and vehicles, cancellations that may have occurred during the period between the creation date of the last FSCP tape and the creation date of the successful IIES initial load tape shall not be reported to DMV” (15 NYCRR 34.7 [a] [emphasis added]). Indeed, as per the affidavit of a DMV manager: “[i]f the carrier had cancelled a policyholder’s policy between the DMV’s acceptance of the carrier’s last FSCP (old format) tape and the creation date of the carrier’s initial load IIES tape, the Insurance carrier was not required to notify DMV” (emphasis added). In this case, Progressive’s purported cancellation of the subject policy occurred during the period when, according to the DMV’s own regulations, the insurer was not required to notify the DMV of such termination. Accordingly, it was error to grant the petition to stay arbitration pursuant to the uninsured motorist provision of the policy on the ground that Progressive failed to properly cancel in accordance with Vehicle and Traffic Law § 313 (a) (2).