Matter of Maya Assur. Co. v Hussain

Aug 2, 2011
2010-06420
Versions:87 AD3d 536
2011 NY Slip Op 06127

In the Matter of Maya Assurance Company, Appellant, v Iqbal Hussain, Respondent. GEICO, et al., Proposed Additional Respondents.

Brand Glick & Brand, P.C., Garden City, N.Y. (Robert A. Glick and Peter M. Khrinenko of counsel), for appellant.

Gail S. Lauzon (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S. Neumann, Jr. of counsel]), for proposed additional respondent-respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Queens County (Rios, J.), dated May 20, 2010, which denied the petition on the ground that it failed to properly serve GEICO and directed the parties to proceed to arbitration.

Ordered that the order is affirmed, with costs.

The petitioner, Maya Assurance Company (hereinafter Maya), commenced this proceeding to stay arbitration demanded by the respondent, Iqbal Hussain. After the proceeding was commenced, the Supreme Court granted Maya leave to add GEICO as a respondent to the proceeding (see CPLR 401; see also 1003).

Although service of the notice of petition to stay arbitration by registered or certified mail (return receipt requested) is sufficient to confer jurisdiction over a party to the proposed arbitration (see CPLR 7503 [c]), it was insufficient to confer jurisdiction over GEICO since it was not a party to the proposed arbitration (see Matter of Liberty Mut. Ins. Co. [Markovitch—Eagle Fuel Transp.—AIU Ins. Co.], 214 AD2d 734, 734-735 [1995]; Lumbermens Mut. Cas. Co. v Oliphant, 152 AD2d 541, 542 [1989]; Matter of Hanover Ins. Co. v McIntyre, 142 AD2d 728, 729 [1988]; Matter of Allcity Ins. Co. [Guy], 97 AD2d 374, 374 [1983]; Matter of American Sec. Ins. Co. v Stanley, 86 AD2d 834, 835 [1982]; see generally CPLR 403 [c]). Moreover, contrary to Maya‘s contention, GEICO did not waive its contention that personal jurisdiction was not properly obtained (see CPLR 320 [b]; Gager v White, 53 NY2d 475, 487-488 [1981], cert denied sub nom. J.E. Guertin Co. v Cachat, 454 US 1086 [1981]; Beris v Miller, 128 AD2d 822, 823 [1987]).

Maya‘s remaining contentions are either unpreserved for appellate review or without merit.

Accordingly, the Supreme Court properly denied the petition and directed the parties to proceed to arbitration. Dillon, J.P., Eng, Sgroi and Miller, JJ., concur.