Aetna Cas. & Sur. Co. v. Bonilla

• Decision Date: 25 September 1995
• Citation: 631 N.Y.S.2d 438,219 A.D.2d 708
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of AETNA CASUALTY & SURETY COMPANY, Respondent, v. Jose BONILLA, Appellant.

Page 438

631 N.Y.S.2d 438

219 A.D.2d 708

In the Matter of AETNA CASUALTY & SURETY COMPANY, Respondent, v. Jose BONILLA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 25, 1995.

Jose R. Mendez, P.C., Rego Park, for appellant.

Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Merril Schapiro Biscone, of counsel), for respondent.

Before O'BRIEN, J.P., and SANTUCCI, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to permanently stay arbitration of an uninsured motorist claim, the appeal is from a judgment of the Supreme Court, Nassau County (Burke, J.), dated March 24, 1993, which granted the petition.

ORDERED that the judgment is reversed, with costs, and the proceeding is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

Two arguments were raised in the Supreme Court in connection with the petition to permanently stay arbitration. The first, raised by the petitioner, was that an earlier arbitration proceeding between the parties barred the instant proceeding. The second, raised by Jose Bonilla in his answer to the petition, is that the petition must be dismissed because the petitioner did not comply with CPLR 306-b(a).

Turning to the petitioner's argument, we find that no rational arbitrator could issue an award in the appellant's favor now, in light of the prior unimpeached arbitration award in Aetna's favor. We also find that Aetna agreed to submit to no more than one single arbitration relative to the one single injury claimed to have been caused by the one single uninsured motor vehicle involved in this case. Any successive arbitration proceeding between the same parties, and concerning the identical circumstances as those reviewed in the prior arbitration would violate the parties' contract as well as principles of res judicata. Under these circumstances the granting of a stay was proper (see, Matter of Klein Assocs. v. Goldenberg, 183 A.D.2d 717, 586 N.Y.S.2d 511; Matter of Cine-Source, Inc. v. Burrows, 180 A.D.2d 592, 593, 581 N.Y.S.2d 9; Protocom Devices v. Figueroa, 173 A.D.2d 177, 569 N.Y.S.2d 80; Matter of Intercontinental Packaging Co. v. China Natl. Cereals, 159 A.D.2d 190, 559 N.Y.S.2d 302; Matter of Prudential Prop. & Cas. Ins. Co. v. Green, 146 A.D.2d 699, 537 N.Y.S.2d 199; Matter of David Assoc. [Bevona], 109 A.D.2d 623, 486 N.Y.S.2d 188; City of Rochester v. AFSCME, Local 1635, 54 A.D.2d 257, 388 N.Y.S.2d 489; cf., Matter of City School District of City of Tonawanda v. Tonawanda Educ. Assn., 63 N.Y.2d 846, 482 N.Y.S.2d 258, 472 N.E.2d 34; Board of Educ. v. Patchogue-Medford Congress of Teachers, 48 N.Y.2d 812, 813, 424 N.Y.S.2d 122, 399 N.E.2d 1143; Matter of Board of Educ., Florida Union Free School Dist. [Florida Teachers Assn.], 104 A.D.2d 411, 478 N.Y.S.2d 935, affd. 64 N.Y.2d 822, 486 N.Y.S.2d 938, 476 N.E.2d 337; Vilceus v. North River Ins. Co., 150 A.D.2d 769, 542 N.Y.S.2d 26). This is true even though the judgment confirming the prior award had been vacated for procedural reasons (see...