Aetna Cas. and Sur. Co. v. Pellegrino

• Decision Date: 18 April 1994
• Citation: 610 N.Y.S.2d 856,203 A.D.2d 457
• Parties: In the Matter of AETNA CASUALTY AND SURETY COMPANY, Respondent, v. Joseph PELLEGRINO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 856

610 N.Y.S.2d 856

203 A.D.2d 457

In the Matter of AETNA CASUALTY AND SURETY COMPANY, Respondent, v. Joseph PELLEGRINO, Appellant.

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

April 18, 1994.

George M. Faber, Westbury, for appellant.

Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and John M. Denby, of counsel), for respondent.

In a proceeding, inter alia, to stay arbitration, Joseph Pellegrino appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (O'Shaughnessy, J.), dated July 31, 1992, as, upon in effect granting reargument, adhered to its original determination staying arbitration.

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

In making a motion denominated as one to renew and reargue, the appellant offered only evidence that had been in his possession when he had opposed the insurance carrier's petition. His motion was, therefore, correctly deemed a motion to reargue. Although the court stated that the motion was denied, the court, in fact, addressed its merits. Consequently, the order is appealable (see, CPLR 5517[a][1]. However, the appellant's contention that he filed a timely notice of his intention to make a claim is without merit (see, Eveready Ins. Co. v. Saunders, 149 A.D.2d 456, 539 N.Y.S.2d 957; State Farm Mut. Auto. Ins. Co. v. Romero, 109 A.D.2d 786, 486 N.Y.S.2d 297; Matter of Chiro [Merchants Mut. Ins. Co.], 49 A.D.2d 686, 371 N.Y.S.2d 30, affd 40 N.Y.2d 852, 387 N.Y.S.2d 1009, 356 N.E.2d 480).

THOMPSON, J.P., and ROSENBLATT, RITTER, FRIEDMANN and KRAUSMAN, JJ., concur.