CNA Ins. Co. v. McNamara

• Decision Date: 17 April 1989
• Citation: 540 N.Y.S.2d 455,149 A.D.2d 590
• Parties: In the Matter of CNA INSURANCE COMPANY, Petitioner-Respondent, v. Tara T. McNAMARA, Appellant, Country-Wide Insurance Company, Additional Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 455

540 N.Y.S.2d 455

149 A.D.2d 590

In the Matter of CNA INSURANCE COMPANY, Petitioner-Respondent, v.Tara T. McNAMARA, AppellantCountry-Wide Insurance Company, AdditionalRespondent-Respondent.

Supreme Court, Appellate Division Second Department.

April 17, 1989.

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 petitionerCNA 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...