Gaul v. American Employers' Insurance

Appeal from an order of Supreme Court, Onondaga County (McCarthy, J.), entered June 12, 2001, which, inter alia, denied the motion of defendants American Employers’ Insurance Company, Jane Blakely-Izzo and Janice Rogers to change venue and granted the cross motion of those defendants seeking dismissal of the complaint against them.

It is hereby ordered that said appeal from the order insofar as it denied plaintiffs cross motion to change venue be and the same hereby is unanimously dismissed and the order is affirmed with costs.

Memorandum: With respect to appeal No. 1, we conclude that Supreme Court properly granted the cross motion of defendants American Employers’ Insurance Company, Jane Blakely-Izzo and Janice Rogers (collectively, American Employers’) seeking dismissal of the complaint against them. “Having previously elected an arbitration forum, plaintiff waived [his] right to commence an action based upon claims arising out of the same accident” (Mack v State Farm Mut. Auto. Ins. Co., *876251 AD2d 1083, 1083; see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264). With respect to appeal No. 2, we conclude that the court properly granted the motion of defendant American Arbitration Association (AAA) for summary judgment dismissing the complaint against it and denied plaintiffs cross motion for summary judgment against AAA. Plaintiff waived any claims against AAA “for any act or omission in connection with” the arbitration conducted with respect to his claims for no-fault benefits (11 NYCRR 65.17 [b] [5] [xxi]). Finally, plaintiff is not aggrieved by the court’s denial of his cross motion to change venue to Erie County (see CPLR 5511). That relief was sought only in the event that the court granted the motion of American Employers’ to change venue to Albany or Schenectady County, and the court denied that motion. Present — Green, J.P., Hurlbutt, Burns, Gorski and Hayes, JJ.