Spychalski v. Utica Mut. Ins. Co.

Decision Date22 September 1976
PartiesIn the Matter of the demand for arbitration before the American Arbitration Association initiated by Richard SPYCHALSKI, Petitioner-Claimant, v. UTICA MUTUAL INSURANCE COMPANY and the Continental Insurance Companies, Respondents.
CourtNew York Supreme Court
MEMORANDUM

MARSHALL E. LIVINGSTON, Justice.

This is a motion by Continental to permanently stay arbitration. Petitioner then cross moved for an order compelling respondent Continental to arbitrate.

The hit-and-run accident out of which this claim arose occurred on September 21, 1975. Claimant was getting into a car owned and operated by John Olles when its left rear door was struck by the hit-and-run vehicle, and petitioner Spychalski was injured.

Mr. Olles was insured by Utica Mutual Insurance Company, and Mr. Spychalski was insured by respondent, Continental. Claims were made by Mr. Spychalski against both carriers under the respective uninsured automobile endorsements on their policies.

The chronology of events insofar as they are pertinent here appears to be as follows: On April 8, 1976, an acknowledged 'Notice of Intention to make Claim' by the claimant was sent to Continental and received the following day (Exhibits A and B of claimant's papers). On April 30, 1976, Continental by letter (Exhibit C of claimant's papers) stated that it would not honor the claim of Mr. Spychalski. On July 20, 1976, demand for arbitration was served upon respondent by certified mail, return receipt. The demand contained the language provided by subdivision (c) of CPLR 7503, to-wit:

'PLEASE TAKE FURTHER NOTICE, that unless within twenty (20) days after service of this Notice of Intention to Arbitrate, you apply to stay the arbitration herein, you shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in Court the bar of a limitation of time.'

On August 24, 1976 (34 days later) petitioner's attorney received a notice of motion to stay arbitration from respondent by Regular mail.

In the meantime Utica, the carrier of the Olles' car, paid the petitioner its $10,000 limit under the uninsured automobile endorsement of its policy.

The primary thrust of Continental's motion is that the petitioner can only collect $10,000 under the uninsured motorist's endorsement, and having received $10,000 from Utica, whose policy covered the car which he was entering when injured by the hit-and-run car, he cannot duplicate that recovery from his own carrier.

On the other hand, petitioner argues that this court has no jurisdiction to entertain Continental's motion because subdivision (c) of CPLR 7503 prescribes a Statute of Limitations in which to challenge a notice of intention to arbitrate. The exhibits presented show that Continental was derelict in this regard (Matter of Jonathan Logan Inc. (Stillwater Worsted Mills), 31 A.D.2d 208, 295 N.Y.S.2d 853, affd., 24 N.Y.2d 898, 301 N.Y.S.2d 636, 249 N.E.2d 477; Matter of General Accident Fire (Cerre...

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4 cases
  • Rifkin v. State Farm Mut. Auto. Ins. Co.
    • United States
    • New York Supreme Court
    • January 13, 1993
    ...to stack $10,000 of UM coverage when there was but one policy covering two vehicles, relying on a lower court case, Matter of Spychalski, 88 Misc.2d 129, 386 N.Y.S.2d 998, reversed on other grounds 58 A.D.2d 193, 396 N.Y.S.2d 533, affd. 45 N.Y.2d 847, 410 N.Y.S. 65, 382 N.E.2d 765. In Sisso......
  • Sisson v. Travelers Ins. Companies
    • United States
    • New York Supreme Court — Appellate Division
    • May 25, 1983
    ...Law, § 167, subd. 2-a) and limits plaintiff's recovery, regardless of how many vehicles are covered by the policy (Matter of Spychalski 88 Misc.2d 129, 386 N.Y.S.2d 998, revd. on other grounds sub nom (Matter of Spychalski 58 A.D.2d 193, 396 N.Y.S.2d 533, affd. 45 N.Y.2d 847, 410 N.Y.S.2d 6......
  • Nationwide Mutual Ins., Co. v. Miller
    • United States
    • New York Supreme Court — Appellate Division
    • May 2, 1985
    ...insurance coverage in similar situations (Sisson v. Travelers Ins. Co., 94 A.D.2d 953, 464 N.Y.S.2d 77; Matter of Spychalski [Continental Ins. Cos.], 88 Misc.2d 129, 386 N.Y.S.2d 998, revd. on other grounds 58 A.D.2d 193, 396 N.Y.S.2d 533, affd. 45 N.Y.2d 847, 410 N.Y.S.2d 65, 382 N.E.2d 76......
  • Sisson v. Travelers Ins. Companies
    • United States
    • New York Supreme Court
    • June 1, 1982
    ...295, 367 N.Y.S.2d 752, 327 N.E.2d 799; State Farm Mut. Ins. Co. v. Basile, 48 A.D.2d 868, 368 N.Y.S.2d 584; and see Mtr. of Spychalski, 88 Misc.2d 129, 386 N.Y.S.2d 998, rev'd other grds. 58 A.D.2d 193, 396 N.Y.S.2d 533; Butler v. Lumbermens Mutual Casualty Co., 72 Misc.2d 489, 339 N.Y.S.2d......

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