Opinion
May 21, 2001.
In a proceeding pursuant to CPLR article 75 to confirm an uninsured motorist arbitration award dated June 25, 1999, Queens Surface Corporation appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated May 2, 2002, which granted the petition and confirmed the award.
Weiss Wexler, P.C., New York, N.Y. (Cory I. Zimmerman of counsel), for appellant.
Mallilo Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondents.
ORDERED that the order is affirmed, with costs.
Contrary to the appellant's contention, it was required to seek a judicial determination as to whether the dispute was arbitrable within 20 days after service upon it of the demand for arbitration (see, CPLR 7503[c]; Matter of Nationwide Ins. Co. v. McDonnell, 272 A.D.2d 547; Matter of Allstate Ins. Co. v. Frederick, 266 A.D.2d 283; Matter of Liberty Ins. Co. v. Bohl, 262 A.D.2d 645; Matter of State Farm Mut. Auto. Ins. Co. v. Nationwide Ins. Co., 117 A.D.2d 673). The Supreme Court properly determined that the appellant waived its claim that the matter was not arbitrable by failing to timely apply for a stay of arbitration, and by participating in the arbitration (see, Matter of Commerce Indus. Ins. Co. v. Nester, 90 N.Y.2d 255, 264; Matter of Nationwide Ins. Co. v. McDonnell, supra; Matter of Arner v. Liberty Mut. Ins. Co., 233 A.D.2d 321). Moreover, the arbitrator did not exceed his power in making the award (see, CPLR 7511[b][1][iii]; Matter of Nationwide Ins. Co. v. McDonnell, supra).
The appellant's remaining contentions are without merit.
SANTUCCI, J.P., S. MILLER, LUCIANO, FEUERSTEIN and ADAMS, JJ., concur.