Opinion
685 CA 20-01553
10-08-2021
In the MATTER OF ARBITRATION BETWEEN ALLSTATE INSURANCE COMPANY, Petitioner-Appellant, AND James M. TWOMEY, Respondent-Respondent.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR PETITIONER-APPELLANT. FINN LAW OFFICES, ALBANY (RYAN M. FINN OF COUNSEL), FOR RESPONDENT-RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR PETITIONER-APPELLANT.
FINN LAW OFFICES, ALBANY (RYAN M. FINN OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding seeking to stay arbitration related to supplementary uninsured/underinsured motorist (SUM) coverage and to compel discovery in aid of arbitration pursuant to CPLR 3102 (c), Supreme Court did not err in denying the petition. The record here establishes that "petitioner ... had ample time ... within which to seek discovery of the respondent insured as provided for in the insurance policy, and unjustifiably failed to utilize that opportunity" to obtain the discovery now sought ( Matter of Connecticut Indem. Ins. Co. [Laperla] , 21 A.D.3d 1262, 1262-1263, 801 N.Y.S.2d 180 [4th Dept. 2005] ; see Matter of Allstate Ins. Co. v. Urena , 208 A.D.2d 623, 623, 618 N.Y.S.2d 219 [2d Dept. 1994] ; cf. Matter of Liberty Mut. Ins. Co. v. Almeida , 266 A.D.2d 547, 547-548, 699 N.Y.S.2d 287 [2d Dept. 1999] ). Petitioner further failed to establish the extraordinary circumstances necessary to warrant court-ordered disclosure in aid of arbitration under CPLR 3102 (c) (see AXA Equit. Life Ins. Co. v. Kalina , 101 A.D.3d 1655, 1656, 956 N.Y.S.2d 743 [4th Dept. 2012] ; Matter of Progressive Specialty Ins. Co. v. Alexis , 90 A.D.3d 933, 933-934, 934 N.Y.S.2d 719 [2d Dept. 2011] ; see generally De Sapio v. Kohlmeyer , 35 N.Y.2d 402, 406, 362 N.Y.S.2d 843, 321 N.E.2d 770 [1974] ) and made no showing that the discovery that it is allowed in arbitration would be inadequate for it to establish its case (see AXA Equit. Life Ins. Co. , 101 A.D.3d at 1656, 956 N.Y.S.2d 743 ; Matter of Travelers Indem. Co. v. United Diagnostic Imaging, P.C. , 73 A.D.3d 791, 792, 899 N.Y.S.2d 641 [2d Dept. 2010] ; International Components Corp. v. Klaiber , 54 A.D.2d 550, 551, 387 N.Y.S.2d 253 [1st Dept. 1976] ).
To the extent that petitioner argues that respondent's demand for arbitration was premature inasmuch as respondent had not complied with the terms of the endorsement for SUM coverage, that argument is not properly before us because petitioner failed to raise it before the court (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, that contention lacks merit inasmuch as petitioner failed to demonstrate that respondent had failed to comply with the terms of the endorsement (cf. Matter of USAA Ins. Co. [Armstrong] , 124 A.D.3d 1383, 1384, 1 N.Y.S.3d 690 [4th Dept. 2015], lv dismissed 27 N.Y.3d 1048, 33 N.Y.S.3d 872, 53 N.E.3d 751 [2016] ). The court therefore properly denied the petition.