CNA Ins. Co. v. McNamara

Decision Date17 April 1989
Citation540 N.Y.S.2d 455,149 A.D.2d 590
PartiesIn the Matter of CNA INSURANCE COMPANY, Petitioner-Respondent, v. Tara T. McNAMARA, Appellant, Country-Wide Insurance Company, Additional Respondent-Respondent.
CourtNew York Supreme Court — Appellate Division

Finkelstein, Kaplan, Levine, Gittelsohn and Tetenbaum, Newburgh (Dominique Manpel, of counsel), for appellant.

Before MOLLEN, P.J., and BRACKEN, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, Tara T. McNamara appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County (Donovan, J.), dated October 19, 1987, as, upon dismissing the petition, made its dismissal without prejudice to renewal before the arbitrator and to impleader of Country-Wide Insurance Company in the arbitration.

ORDERED that the judgment is reversed insofar as appealed from, with costs, and the provisions permitting renewal and impleader of Country-Wide Insurance Company are deleted.

The record reveals that the petitioner CNA Insurance Company (hereinafter CNA) commenced this proceeding to stay arbitration of an uninsured motorist claim on the ground that the offending vehicle was covered by a policy of automobile insurance issued by Country-Wide Insurance Company (hereinafter Country-Wide) at the time of the accident. The Supreme Court, in dismissing the petition as vague and unsubstantiated, nevertheless effectively granted CNA leave to renew the claim before the arbitrator and to implead Country-Wide as an additional party to the arbitration. This was error, as it is firmly established that under these circumstances, the appropriate forum for the resolution of the preliminary issue of insurance coverage is the court rather than arbitration (see, Matter of Aetna Cas. & Sur. Co. [Bruton], 45 N.Y.2d 871, 410 N.Y.S.2d 580, 382 N.E.2d 1355 revg. 58 A.D.2d 551, 396 N.Y.S.2d 207 on dissent of Silverman, J., at the App.Div.; Matter of Rosenbaum [American Sur. Co. of N.Y.], 11 N.Y.2d 310, 229 N.Y.S.2d 375, 183 N.E.2d 667; Matter of National Gen. Ins. Co. [Makofske], 100 A.D.2d 905, 474 N.Y.S.2d 792; Matter of Allstate Ins. Co. v. Jacobs, 85 A.D.2d 542, 444 N.Y.S.2d 665; Matter of Carmichael [Government Employees Ins. Co.], 54 A.D.2d 140, 388 N.Y.S.2d 354). Moreover, having exercised its opportunity to have the claim of coverage passed upon by the Supreme Court, CNA is not...

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  • U.S. Fidelity and Guar. Co. v. Mitchell
    • United States
    • New York Supreme Court — Appellate Division
    • December 21, 1990
    ...& Sur. Co. [Bruton], 45 N.Y.2d 871, 410 N.Y.S.2d 580, 382 N.E.2d 1355, rev'g 58 A.D.2d 551, 396 N.Y.S.2d 207; Matter of CNA Ins. Co. v. McNamara, 149 A.D.2d 590, 540 N.Y.S.2d 455; cf., Matter of General Acc. Ins. Co. [Ramee], 157 A.D.2d 877, 549 N.Y.S.2d 880). The court erred, however, in c......

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