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

790
CA 15-02099
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF ARBITRATION BETWEEN ALLSTATE
INSURANCE COMPANY, PETITIONER-RESPONDENT,

                    AND                           MEMORANDUM AND ORDER

MICHAEL J. CAPPADONIA, RESPONDENT-APPELLANT.


FINKELSTEIN & PARTNERS, LLP, NEWBURGH (GEORGE A. KOHL, II, OF
COUNSEL), FOR RESPONDENT-APPELLANT.

LAW OFFICE OF JOHN TROP, DEWITT (BARNEY F. BILELLO OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Erin P.
Gall, J.), entered June 23, 2015. The order granted the petition to
permanently stay arbitration.

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

     Memorandum: In this dispute over supplementary
uninsured/underinsured motorist (SUM) coverage, respondent insured
appeals from an order granting the petition of petitioner insurer to
stay arbitration permanently pursuant to CPLR 7503 (c). We agree with
respondent that Supreme Court erred in granting the petition.
Respondent obtained an automobile liability insurance policy from
petitioner for a pickup truck and two passenger vehicles. The policy
provided SUM coverage to respondent, and also included an arbitration
clause. While the policy was in effect, respondent sustained personal
injuries when a motorcycle he was operating was struck by an allegedly
underinsured vehicle. Although the motorcycle was not covered under
the policy issued to him by petitioner, respondent made a claim with
petitioner for SUM coverage. Petitioner disclaimed coverage on the
ground that the motorcycle was not covered under the policy, prompting
respondent to demand arbitration pursuant to CPLR 7503 (c). More than
five months after respondent’s demand, petitioner commenced this
proceeding to stay arbitration, asserting, as it did in the disclaimer
letter, that no SUM coverage existed in connection with the accident
because the motorcycle on which petitioner was riding was not a
covered vehicle under the policy. In opposition, respondent argued,
inter alia, that the petition was untimely. The court granted the
petition without explanation, and we now reverse.
                                 -2-                           790
                                                         CA 15-02099

     We agree with respondent that the petition to stay arbitration is
time-barred because it was not filed within 20 days of respondent’s
formal arbitration demand (see CPLR 7503 [c]; Aetna Life & Cas. Co. v
Stekardis, 34 NY2d 182, 185-186; John W. Cowper Co. v Clintstone
Props., 120 AD2d 976, 977, lv denied 68 NY2d 610). Although the 20-
day time limit of CPLR 7503 (c) does not apply if the parties never
had “any agreement to arbitrate” (Matter of Matarasso [Continental
Cas. Co.], 56 NY2d 264, 268), the “Matarasso exception is
inapplicable” because “the contract[] at issue in this case contain[s]
an arbitration provision” (Matter of Fiveco, Inc. v Haber, 11 NY3d
140, 145, rearg denied 11 NY3d 801; see Matter of Steck [State Farm
Ins. Co.], 89 NY2d 1082, 1084). Indeed, so long as the subject
insurance policy contains some type of arbitration agreement between
the parties, as it does here, an untimely stay application which
“conten[ds] that there is no coverage under [the] policy’s [SUM]
provisions . . . is outside the [Matarasso] exception” (Matter of Nova
Cas. Co. v Martin, 57 AD3d 548, 549; see Steck, 89 NY2d at 1084;
Matter of State Farm Mut. Auto. Ins. Co. v Urban, 78 AD3d 1064,
1065-1066; State Farm Ins. Cos. v DeSarbo, 52 AD3d 936, 937). Because
the petition was untimely, the court had no power to entertain it (see
Fiveco, Inc., 11 NY3d at 145; Steck, 89 NY2d at 1084; Aetna Life &
Cas. Co., 34 NY2d at 185-186).

     In light of our determination, we need not address respondent’s
remaining contentions.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
