IN RE: NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY (2005)

In a proceeding pursuant to CPLR article 75 to stay an uninsured motorist arbitration, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Dunn, J.), dated September 15, 2003, which denied the petition and dismissed the proceeding, and (2) an order of the same court entered November 21, 2003, which denied its motion for leave to renew and/or reargue the petition.

ORDERED that the appeal from so much of the order entered November 21, 2003, as denied that branch of the defendant's motion which was for reargument is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated September 15, 2003, is affirmed, without costs or disbursements;  and it is further,

ORDERED that the order entered November 21, 2003, is affirmed insofar as reviewed, without costs or disbursements.

As the Supreme Court noted, and as the petitioner, New York Central Mutual Fire Insurance Company (hereinafter NYCMFI), admitted, the petitioner failed to submit a copy of a certain letter along with its reply papers although it argued and asserted the facts allegedly set forth in that letter.   Thereafter, in a motion, inter alia, for leave to renew, it admitted that failure and supplied a copy of the missing letter in support of that branch of its motion which sought renewal.   On appeal, the petitioner argues that the denial of leave to renew was improper.

We agree with NYCMFI that it showed a sufficient excuse for failing originally to submit the letter it now relies on to support of that branch of its motion which was for leave to renew.   However, since that letter failed to show that NYCMFI timely demanded pre-arbitration discovery, i.e., the examination under oath and independent medical examination, the Supreme Court properly denied leave to renew (see Stocklas v. Auto Solutions of Glenville, 9 A.D.3d 622, 780 N.Y.S.2d 215;  Matter of New York Cent. Mut. Fire Ins. Co. v. Gershovich, 1 A.D.3d 364, 766 N.Y.S.2d 596;  Matter of Allstate Ins. Co. v. Urena, 208 A.D.2d 623, 618 N.Y.S.2d 219).