IN RE: Auto One Insurance Company (2011)

Argued—September 12, 2011

DECISION & ORDER

In a proceeding, inter alia, pursuant to CPLR article 75, to permanently stay arbitration of an uninsured motorist claim, Juan Lopez, Larry M. Aparicio, and Cruz Lopez–Guzman appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated September 22, 2010, which granted the petition to the extent of temporarily staying the arbitration pending the joinder of certain additional respondents.

ORDERED that the order is affirmed, with costs.

CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate (see Matter of Fiveco, Inc. v. Haber, 11 NY3d 140, 144).  “[T]he timeliness of a proceeding for a stay of arbitration is measured with respect to the earlier filing of the petition, not with respect to its later service” (Matter of Government Empl. Ins. Co. v Morris, 83 AD3d 709, 710;  see CPLR 304, 7502 [a];  Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 N.Y.2d 745;  Matter of Scott v. Allstate Ins. Co., 45 AD3d 690;  Matter of Allstate Indem.   Co. v Martinezn, 4 AD3d 422).   Here, it uncontested that the appellants served their notice of intention to arbitrate on April 20, 2010.   The petitioner submitted proof that the instant proceeding was commenced on May 3, 2010, by the filing of a petition.   Accordingly, contrary to the appellants' contention, the action was commenced within the 20–day limitation period, and thus was timely.

The appellants' remaining contentions are either improperly raised for the first time on appeal (see Jara v New York Racing Assn., Inc., 85 AD3d 1121;  Panteleon v. Amaya, 85 AD3d 993), or without merit.

ANGIOLILLO, J.P., HALL, COHEN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court