Progressive Northern Insurance v. Foss , 947 N.Y.S.2d 317 ( 2012 )

— In a proceeding pursuant to CPLR article 75 to temporarily stay arbitration of a claim for supplementary underinsured motorist benefits, Ilja Foss and Bella Foss appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Rios, J.), entered October 18, 2011, which denied their motion to dismiss the petition and granted the petition to the extent of staying the arbitration pending the completion of certain discovery.

Ordered that the order and judgment is reversed, on the facts and in the exercise of discretion, with costs, the motion to dismiss the petition is granted, and the proceeding is dismissed.

The petitioner commenced this proceeding to temporarily stay arbitration of a claim for supplementary uninsured/ underinsured motorist (hereinafter SUM) benefits pending the completion of certain discovery permitted by the subject insurance policy. The Supreme Court improvidently exercised its discretion in granting the petition to the extent of staying the arbitration pending the completion of certain discovery, and denying the appellants’ motion to dismiss the petition. The petitioner had ample time to seek the desired discovery before commencing the proceeding, and unjustifiably failed to do so (see Matter of Government Empls. Ins. Co. v Mendoza, 69 AD3d 623, 624-625 [2010]; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 713-714 [2006]; Matter of New York Cent. Mut. Fire Ins. Co. v Gershovich, 1 AD3d 364, 365 [2003]; Matter of Government Empls. Ins. Co. v Rosenfarb, 306 AD2d 478, 478-479 [2003]). Florio, J.P., Lott, Sgroi and Miller, JJ., concur.