Opinion
June 11, 1990
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the appeal by Alvin Housey is dismissed since he is not aggrieved by the order (CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant Eric Housey; and it is further,
Ordered that the plaintiff is awarded one bill of costs payable by the defendants Eric Housey and Alvin Housey.
The motor vehicle insurance policy issued by the plaintiff United States Fidelity Guaranty (hereinafter USFG) to the defendant Alvin Housey covering Alvin's 1976 Pontiac, specifically stated that it did "not provide Underinsured Motorists Coverage for bodily injury sustained by any person * * * while occupying, or when struck by, any motor vehicle owned by [the insured] or any family member which is not insured for this coverage under this policy".
On November 10, 1987, Alvin's son, the appellant Eric Housey, made a claim to recover damages for personal injuries against USFG and demanded arbitration pursuant to the underinsured motorists protection under the USFG policy. It was alleged that on June 7, 1985, Eric was injured while operating a motorcycle he owned and separately insured under a policy issued by the defendant Universal Underwriters Insurance Co. More than seven months after the filing of Eric's claim and demand for arbitration, USFG commenced this declaratory judgment action on the ground that the underinsured motorists provision in the policy did not provide coverage to Eric under the circumstances of the accident. Thereafter, USFG successfully moved for a stay of the arbitration proceeding between it and Eric Housey pending the outcome of the declaratory judgment action. We now affirm.
The appellant's contention that the application for a stay of arbitration was untimely under CPLR 7503 (c) lacks merit. A stay application may be entertained after the statutory time period in CPLR 7503 (c) on the basis that the parties never agreed to arbitrate a claim for which no coverage was provided (see, Matter of Continental Ins. Co. v. Sarno, 128 A.D.2d 870; see also, Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264). Further, with respect to the claim of noncoverage, it is irrelevant that USFG failed to timely disclaim liability (see, Zappone v. Home Ins. Co., 55 N.Y.2d 131; Nyack Hosp. v. State Farm Ins. Co., 150 A.D.2d 659). Thompson, J.P., Brown, Lawrence and Eiber, JJ., concur.