Transport Insurance v. Tedesco

— Order unanimously reversed on the law without costs and petition granted. Memorandum: Special Term erred in denying petitioner’s motion for a stay of arbitration. Respondent was not entitled to recover uninsured motorist benefits under Insurance Law § 3420 (f) (1) because the accident occurred outside the State of New York (see, Matter of Sentry Ins. Co. [Amsel] 36 NY2d 291). Under the terms of petitioner’s policy of insurance issued in accor*937dance with the laws of the Province of Ontario, respondent is entitled to arbitrate its claim only if petitioner has consented to such procedure, which it has not. Absent an agreement to arbitrate, petitioner’s failure to move timely to stay arbitration pursuant to CPLR 7503 (a) is immaterial (see, Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264). (Appeal from order of Supreme Court, Erie County, Joslin, J. — arbitration.) Present — Dillon, P. J., Callahan, Denman, Pine and Lawton, JJ.