JASON PILKENTON PETITIONER RESPONDENT v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY RESPONDENT APPELLANT (2013)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is denied.

Memorandum:  Respondent appeals from an order that granted the petition seeking, inter alia, to direct respondent to submit to the appraisal process set forth in its policy of insurance.   Assuming without deciding that the petition was timely filed and procedurally proper, we agree with respondent that the insurance coverage dispute precludes the application of the appraisal process set forth in the policy (see Kawa v Nationwide Mut. Fire Ins. Co., 174 Misc.2d 407, 408–409;  see generally Amerex Group, Inc. v Lexington Ins. Co., 678 F3d 193, 204 [2d Cir] ).  Insurance Law § 3408(c) provides for an appraisal in the event of a covered loss, and here there is a pending declaratory judgment action in which the parties dispute whether this is a covered loss.

Frances E. Cafarell

Clerk of the Court