                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 6, 2015                     519837
________________________________

In the Matter of the
   Arbitration between STATE
   FARM INSURANCE COMPANY,
                    Appellant,
      and                                    MEMORANDUM AND ORDER

VICTOR BANYAN et al.,
                    Respondents.
________________________________


Calendar Date:    May 26, 2015

Before:    Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

                              __________


      Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel),
for appellant.

      Cassisi & Cassisi, PC, Mineola (Jonathan A. Dachs of
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, of counsel), for
respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered November 8, 2013 in Tompkins County, which, among other
things, denied petitioner's amended application pursuant to CPLR
7503 to permanently stay arbitration between the parties.

      Respondents filed a demand for supplementary
uninsured/underinsured motorist arbitration based on the
allegation that a vehicle operated by respondent Victor Banyan
had been struck by an unidentified vehicle that left the scene of
the accident. Petitioner contested respondents' claim that the
accident was caused by physical contact with the other vehicle
                              -2-                  519837

and commenced this proceeding to stay arbitration. After a
hearing, Supreme Court determined that physical contact had
occurred and, among other things, denied petitioner's request for
a permanent stay of arbitration. Although petitioner then filed
a notice of appeal, it did not seek an interim stay, nor did it
perfect the appeal within the requisite time period. Meanwhile,
the parties proceeded to arbitration and respondents were awarded
the full value of the policy. Only thereafter did petitioner
move for an extension of time to perfect the appeal from Supreme
Court's order finding physical contact. We granted the motion,
but now dismiss the appeal.

      We agree with respondents that petitioner waived its right
to appeal by proceeding to arbitration without seeking a stay
pending determination of its appeal (see Matter of Commerce &
Indus. Ins. Co. v Nester, 90 NY2d 255, 264 [1997]; Matter of One
Beacon Ins. Co. v Bloch, 298 AD2d 522, 523 [2002]). Contrary to
petitioner's claim, our grant of the motion for an extension of
time to perfect the appeal did not address the merits of
respondents' waiver argument and, thus, does not preclude us from
considering the argument on this appeal (see Karol v Polsinello,
127 AD3d 1401, 1402-1403 [2015]; South Point, Inc. v Redman, 94
AD3d 1086, 1087 [2012]; Brothers v Bunkoff Gen. Contrs., 296 AD2d
764, 765 [2002]).

     Lahtinen, J.P., McCarthy and Clark, JJ., concur.



     ORDERED that the appeal is dismissed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
