IN RE: METLIFE AUTO & HOME

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

IN RE: METLIFE AUTO & HOME, appellant, v. Donato PENNELLA, et al., respondents.

Decided: September 27, 2004

NANCY E. SMITH, J.P., HOWARD MILLER, SONDRA MILLER, and DANIEL F. LUCIANO, JJ. Boeggeman, George, Hodges & Corde, P.C., White Plains, N.Y. (Leslie K. Arfine and Daniel E. O'Neill of counsel), for appellant. Napoli Kaiser & Bern, LLP, New York, N.Y. (Denise A. Rubin of counsel), for respondent Donato Pennella. Fishman, Dorfman & Callahan, Pearl River, N.Y. (Anna B. Melhem of counsel), for respondent Highlands Insurance Company.

In a proceeding, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Carey, J.H.O.), dated February 3, 2003, as denied that branch of the petition which was to permanently stay arbitration.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

 The appellant contends that the purported cancellation by the respondent Highlands Insurance Company (hereinafter Highlands) of the auto insurance policy it issued to the respondent Windsor Waste Management was invalid because there was no proof that the notice of cancellation was properly mailed.   A hearing was held to determine the validity of the cancellation, at which the appellant waived live testimony regarding the alleged mailing.   A party who agrees not to take a certain position in a trial court will be held to have waived that position on appeal (see generally Matter of Attorney Gen. of State of N.Y. v. Firetog, 94 N.Y.2d 477, 484, 706 N.Y.S.2d 666, 727 N.E.2d 1220;  Grimaldi v. Spievogel, 300 A.D.2d 200, 751 N.Y.S.2d 737).   By agreeing to waive live testimony regarding the alleged mailing, the appellant waived any challenge to the sufficiency of the evidence on that issue.   Therefore, the Supreme Court properly determined that the cancellation notice was mailed and that the policy issued by Highlands was cancelled.   Thus, the Supreme Court properly denied that branch of the petition which was to permanently stay arbitration.

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