           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1236
CA 13-00813
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


JASON T. PILKENTON, PETITIONER-RESPONDENT,

                     V                              MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
RESPONDENT-APPELLANT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MARCO
CERCONE OF COUNSEL), FOR RESPONDENT-APPELLANT.

JASON T. PILKENTON, PETITIONER-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Livingston County
(Dennis S. Cohen, A.J.), entered April 3, 2013. The order granted the
petition seeking, inter alia, to direct respondent to submit to the
appraisal process set forth in its policy of insurance.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
denied.

     Memorandum: Respondent appeals from an order that granted the
petition seeking, inter alia, to direct respondent to submit to the
appraisal process set forth in its policy of insurance. Assuming
without deciding that the petition was timely filed and procedurally
proper, we agree with respondent that the insurance coverage dispute
precludes the application of the appraisal process set forth in the
policy (see Kawa v Nationwide Mut. Fire Ins. Co., 174 Misc 2d 407,
408-409; see generally Amerex Group, Inc. v Lexington Ins. Co., 678
F3d 193, 204 [2d Cir]). Insurance Law § 3408 (c) provides for an
appraisal in the event of a covered loss, and here there is a pending
declaratory judgment action in which the parties dispute whether this
is a covered loss.




Entered:   December 27, 2013                      Frances E. Cafarell
                                                  Clerk of the Court
