Interboro Mutual Indemnity Insurance v. Legros

In a proceeding pursuant to CPLR article 75 to stay arbitration, the appeal is from an order of the Supreme Court, Nassau County (Roncallo, J.), dated October 1, 1992, which denied the petitioner’s motion to vacate an arbitration award.

Ordered that the order is affirmed, with costs.

The petitioner moved to vacate the arbitration award under CPLR 7511 (b) (2) (iii) on the ground that the arbitration agreement had not been complied with. However, such relief is only available to a party "who neither participated in the arbitration nor was served with a notice of intention to arbitrate” (CPLR 7511 [b] [2]). Although the petitioner did not participate in the arbitration, it concedes that it was served with a notice of intention to arbitrate. Thus the petitioner is not entitled to the relief requested, and the Supreme Court properly denied the petitioner’s motion on that basis. Rosenblatt, J. P., Miller, Lawrence and Florio, JJ., concur.