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Decided: March 06, 2013

RANDALL T. ENG, P.J., REINALDO E. RIVERA, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ. Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant. Mary J. Mraz, Albany, N.Y. (Allen Werter of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 7, 2011, in which the respondent cross petitioned to confirm the award, the petitioner appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated March 26, 2012, which denied the petition and granted the cross petition.

ORDERED that the order is affirmed, with costs.

The petitioner commenced this proceeding pursuant to CPLR article 75 to vacate an arbitration award on the ground that arbitration was not available under Insurance Law § 5105 because neither of the vehicles involved in the subject collision weighed more than 6,500 pounds or was used principally for the transportation of persons or property for hire. Initially, we note that since the petitioner failed to apply for a stay of arbitration prior to arbitration, the petitioner waived its contention that the arbitrator exceeded its jurisdiction in making the award (see Matter of Silverman [Benmor Coats ], 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261; Matter of Philadephia Ins. Co. [Utica Natl. Ins. Group ], 97 AD3d 1153; Matter of Utica Mut. Ins. Co. v. Incorporated Vil. of Floral Park, 262 A.D.2d 565, 692 N.Y.S.2d 420). In any event, the requirement that one of the vehicles involved in the collision either weigh more than 6,500 pounds or be principally used for the transportation of persons or property for hire “is a condition precedent to ultimate recovery, not a condition precedent to ‘access to the arbitral forum’ “ (Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 A.D.3d 633, 634, 850 N.Y.S.2d 478, quoting Matter of County of Rockland [Primiano Constr. Co.], 51 N.Y.2d 1, 7, 431 N.Y.S.2d 478, 409 N.E.2d 951). Further, contrary to the petitioner's contention, the arbitrator's award had evidentiary support and was not arbitrary or capricious (see Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223–224, 652 N.Y.S.2d 584, 674 N.E.2d 1349; Matter of Fireman's Fund Ins. Co. v. Allstate Ins. Co., 46 A.D.3d 560, 561, 846 N.Y.S.2d 636; Matter of Nixon Taxi Corp. [State Farm Gen. Ins. Co.], 128 A.D.2d 616, 619). Accordingly, the Supreme Court properly denied the petition to vacate the arbitration award, and properly granted the respondent's cross petition to confirm the award.

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