Opinion
October 25, 1993
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the judgment is reversed, on the law, with costs, the petition is denied, and the cross motion to compel arbitration is granted to the extent indicated herein.
Mario Cinisomo was allegedly injured in an automobile accident on April 22, 1989, and sought to claim underinsured motorist benefits which he alleged existed under his automobile insurance policy issued by the petitioner Aetna Casualty and Surety Company (hereinafter Aetna). Cinisomo served Aetna with a demand for arbitration pursuant to CPLR 7503 (c) via certified mail on April 16, 1991. Aetna thereafter commenced this proceeding to stay arbitration by the service of a notice of petition and petition on May 6, 1991.
Contrary to Cinisomo's arguments, the Supreme Court properly determined that Aetna's petition to stay arbitration was timely served. Whether Aetna received Cinisomo's demand for arbitration on April 19th, as Cinisomo claims, or on April 23rd, as Aetna claims, the May 6th service of the notice of petition and petition clearly fell within the 20-day period set forth in CPLR 7503 (c) (see, Matter of Knickerbocker Ins. Co. [Gilbert], 28 N.Y.2d 57, 64-65; Matter of Allstate Ins. Co. [Metayer], 137 A.D.2d 454).
Although Aetna's proceeding was timely, we find that Aetna was not entitled to a stay of arbitration. The declarations page which is at the heart of the parties' dispute shows under the coverage section, a space for "Part C, Uninsured/Underinsured Motorists, $10,000 each person, $20,000 each accident". This Court has twice found that the form used by Aetna for its declarations page is arguably ambiguous (see, Matter of Aetna Cas. Sur. Co. v. Kunz, 182 A.D.2d 685; Matter of Aetna Cas. Sur. Co. v. Schulman, 162 A.D.2d 450). Bearing in mind that any ambiguity concerning the kind of coverage that was obtained must be resolved in favor of the insured (see, Matter of Liberty Mut. Ins. Co. v. Annunziato, 187 A.D.2d 429; Terwilliger v. American Motorists Ins. Co., 156 A.D.2d 805), we find that Cinisomo was entitled to underinsured motorists coverage under the policy.
Since Cinisomo had underinsured motorist coverage, he was entitled to compel arbitration of his claim. However, we find that the American Arbitration Association is an improper forum for the arbitration. The insurance policy herein contains a mechanism for arbitration whereby each party was to select one arbitrator, and then those two arbitrators would select a third. Since Aetna's petition to stay arbitration was timely, Cinisomo is required to follow the arbitration procedures set forth in the policy (see, Matter of State Mut. Auto. Ins. Co. [Mercado], 52 N.Y.2d 840; cf., Matter of Aetna Cas. Sur. Co. v. Jones, 188 A.D.2d 597).
Finally, we note, as conceded by Cinisomo in his reply brief, the extent of underinsured motorist coverage is limited to $10,000 per person and $20,000 per accident. Balletta, J.P., Rosenblatt, Miller and Pizzuto, JJ., concur.