Mell v. Allstate Ins. Co.

Decision Date30 November 1970
Citation315 N.Y.S.2d 708,35 A.D.2d 898
PartiesIn the Matter of the Arbitration between Michael MELL, Respondent, and ALLSTATE INSURANCE COMPANY, Appellant.
CourtNew York Supreme Court — Appellate Division

Parisi & De Lorenzo, Schenectady (Thomas E. De Lorenzo, Schenectady, of counsel), for respondent.

Friedman, Ladd & Maksail, Schenectady (Harold A. Friedman, Schenectady, of counsel), for appellant.

Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal (1) from a judgment of the Supreme Court at Special Term, entered January 20, 1970 in Schenectady County, which denied appellant's application to stay arbitration and to extend appellant's time to apply for such stay; and (2) from an order, entered May 6, 1970, which denied appellant's motion for reargument.

Claimant-respondent was injured in an automobile accident within the State of New York on July 10, 1967. At the time of the alleged accident, respondent was a passenger in an automobile owned by John H. Bacon, and insured by appellant Allstate Insurance Company. Respondent alleges that the accident was caused by the negligence of the operator of an uninsured motor vehicle.

On August 15, 1967 respondent sent a notice of claim to appellant's local office in Latham, New York. On July 15, 1969 respondent sent a demand for arbitration to appellant's national headquarters in Skokie, Illinois, which demand included a statement that, unless appellant applied to stay the arbitration within 10 days after service of the demand, it would be precluded from objecting that a valid agreement was not made, or has not been complied with, and from asserting in any court the bar of a limitation of time. Thereafter, appellant moved to stay arbitration, serving its notice of motion and petition on respondent on August 18, 1969. Appellant concedes that at the time of such service, the 10 day requirement for an application to stay arbitration, pursuant to the demand itself and pursuant to CPLR 7503, had already expired, and that the delay in serving the application for a stay was due to an error by the appellant in its failure to advise its Latham office of the demand for arbitration.

Pursuant to CPLR 7503 (subd. (c)), the application for a stay of arbitration 'must be made' within 10 days after due service of a proper notice of intention to arbitrate. (Matter of Jonathan Logan, Inc. (Stillwater Worsted Mills), 31 A.D.2d 208, 295 N.Y.S.2d 853, affd. 24 N.Y.2d...

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  • Spychalski v. Continental Ins. Companies
    • United States
    • New York Supreme Court — Appellate Division
    • July 12, 1977
    ... ... 24 N.Y.2d 898, 301 N.Y.S.2d 636, 249 N.E.2d 477; United Servs. Auto Assn. v. Cutrona, 42 A.D.2d 1033, 348 N.Y.S.2d 612 (4th Dept.); Matter of Mell (Allstate Ins. Co.), 35 A.D.2d 898, 315 N.Y.S.2d 708 (3rd Dept.); Matter of Sisters of Charity of St. Vincent De Paul (Boegel & Allodi), 32 A.D.2d ... ...

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