IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (1997)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. David F. CORDES, et al., Respondents.

Decided: September 22, 1997

Before O'BRIEN, J.P., and SULLIVAN, GOLDSTEIN and LUCIANO, JJ.

Martin, Fallon & Mullé, Huntington (Richard C. Mullé, of counsel), for appellant. Shayne, Dachs, Stanisci, Corker & Sauer, Mineola (Norman H. Dachs, of counsel), for respondents.

In a proceeding pursuant to CPLR article 75, the petitioner appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County (McCarty, J.), entered October 2, 1996, as awarded pre-arbitration award interest.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, the provision granting pre-arbitration award interest is deleted, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate amended judgment.

The court lacked the power to award pre-arbitration award interest (see, e.g., Matter of Aetna Cas. & Sur. Co. v. Rosen, 233 A.D.2d 499, 650 N.Y.S.2d 29). Bernstein v. Allstate Ins. Co., 199 A.D.2d 358, 605 N.Y.S.2d 354, relied upon by the respondents, is inapposite, since the parties stipulated in that case to resolve their dispute in the courts rather than by arbitration. Therefore, the power of the court to award pre-arbitration award interest was never in issue in that case.

MEMORANDUM BY THE COURT.

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