Opinion
CA 05-00058.
September 30, 2005.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered October 7, 2004 in a proceeding pursuant to CPLR article 75. The order denied petitioner's application.
AHMUTY, DEMERS MC MANUS, ALBERTSON (BRENDAN T. FITZPATRICK OF COUNSEL), FOR PETITIONER-APPELLANT.
FINKELSTEIN PARTNERS, NEWBURGH (GEORGE A. KOHL, 2nd, OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Present: Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: In this proceeding commenced pursuant to CPLR article 75, Supreme Court did not improvidently exercise its discretion in denying petitioner's application for an order staying the underinsured motorist arbitration sought by respondent, pending discovery. The record 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 Allstate Ins. Co. v. Urena, 208 AD2d 623, 623; see e.g., Matter of New York Cent. Mut. Fire Ins. Co. v. Gershovich, 1 AD3d 364; Matter of State Farm Ins. Co. v. Smith, 255 AD2d 386; Matter of Allstate Ins. Co. v. Faulk, 250 AD2d 674; cf. Matter of Liberty Mut. Ins. Co. v. Almeida, 266 AD2d 547; Matter of Metropolitan Prop. Cas. Ins. Co. v. Keeney, 241 AD2d 455, 456).