IN RE: GEICO GENERAL INSURANCE COMPANY (2019)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about February 21, 2019, which granted the petition of GEICO General Insurance Company (GEICO) to temporarily stay the arbitration proceeding until respondent complies with the discovery deemed appropriate by the arbitrator, unanimously reversed, on the law, with costs, and the petition denied.

CPLR 7503(c) provides that “[a]n application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded.”  “This statutory time period is to be strictly construed” (Gold Mills v. Pleasure Sports, 85 A.D.2d 527, 528, 444 N.Y.S.2d 656 [1st Dept. 1981] ).  Here, GEICO received the April 26, 2018 demand on April 30, 2018, and did not move to stay arbitration until more than three months later.  Accordingly, the petition was untimely.

Although there is a limited exception to this rule, namely, that an otherwise untimely petition to stay arbitration may be entertained when “its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with” (Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264, 266, 451 N.Y.S.2d 703, 436 N.E.2d 1305 [1982] ), this case does not meet that exception.

Respondent's refusal to submit to an independent medical examination or examination under oath involves a condition precedent to coverage as opposed to an issue of arbitrability (see Matter of GEICO Gen. Ins. Co. v Schwartz, 35 Misc.3d 1221[A], 2012 N.Y. Slip Op. 50802[U], 2012 WL 1580941 [Sup. Ct., Kings County 2012] ).

GEICO's reliance on CPLR 3102(c), which expressly empowers the court to direct disclosure in aid of arbitration, is misplaced in light of the untimely petition under CPLR 7503(c) (see Matter of Motor Veh. Acc. Indem. Corp. [McCabe], 19 A.D.2d 349, 243 N.Y.S.2d 495 [1st Dept. 1963];  Matter of GEICO Gen. Ins. Co. v Schwartz, 35 Misc.3d 1221[A], 2012 N.Y. Slip Op. 50802[U], 2012 WL 1580941 at *5–6).  Equally unavailing is GEICO's assertion that the petition should be granted in the interest of justice.  The record shows that respondent complied with GEICO's initial demands at the time the demand for arbitration was forwarded on April 26, 2018.  Had GEICO promptly requested the additional discovery, instead of waiting as long as it did, it could have requested the CPLR 7503(c) stay within the requisite time period.