Opinion
April 28, 1995
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Pine, J.P., Lawton, Wesley, Callahan and Davis, JJ.
Order unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in denying the petition for a stay of arbitration of respondent's claim on behalf of Edward and April Leno for uninsured motorists coverage under the commercial umbrella liability policy issued by petitioner to Business Services Company of Utica. That policy contains no provision for the arbitration of disputes and affords no uninsured motorists coverage. Rather, it affords excess and extended liability coverage to insureds for damages owing to third parties. Moreover, contrary to the conclusion reached by the court, the commercial umbrella liability policy's incorporation of the "same terms, conditions, agreements, exclusions and definitions as the 'underlying insurance' except with respec[t] to any provision to the contrary contained in this insurance", did not extend to the provisions for uninsured motorists coverage contained in the underlying insurance policy (see, Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264, 268). Thus, there was no provision in petitioner's policy to support the conclusion of the court that respondent's claim was subject to arbitration.
Furthermore, the alternative grounds urged by respondent to support denial of a stay of arbitration lack merit. The application for the stay was timely (see, CPLR 7503 [c]), and there is no support in the record for respondent's assertion that the existence of the commercial umbrella liability policy was concealed by petitioner. In any event, where, as here, there is no agreement to arbitrate, the insurance carrier is not barred by its failure to move to stay arbitration within the required 20-day statutory period (see, Matter of Matarasso [Continental Cas. Co.], supra, at 266; Matter of Steck [State Farm Ins. Co.], 213 A.D.2d 1051).