This is a proceeding commenced by Government Employees Insurance Company (GEICO) pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, demanded by Chibueze Obi (Respondent).

BACKGROUND

The Respondent allegedly sustained personal injuries as a result of a motor vehicle accident. The respondent served a demand for arbitration for uninsured motorist benefits upon the insurance carrier, the petitioner GEICO, by certified mail which was received on January 9, 2006. The demand for Arbitration alleged that the respondent sustained injuries in an accident on April 24, 2004, allegedly involving an uninsured motorist. Mohammads Anower was purportedly the owner of the offending vehicle. GEICO submits that the respondent failed to submit sufficient proof that the vehicle allegedly involved in the aforementioned accident was, in fact, uninsured. GEICO commenced this action when they filed the petition with this court on January 30, 2006. GEICO brings this petition to permanently stay arbitration, or in the alternative, a temporary stay of arbitration pending a hearing on the issue of whether the offending vehicle was in fact uninsured, and joining Hudson Insurance Company ad Mohammads Anower to this proceeding. Respondent opposes the petitioner's motion to stay the arbitration on the sole ground that the petition is untimely as a matter of law, and must therefore be dismissed.

APPLICABLE LAW & DISCUSSION

CPLR §7503 ) provides the mechanism by which a party seeking to initiate arbitration may shift to his opponent the burden of promptly seeking a judicial stay of arbitration on the basis of the threshold defenses of nonarbitrability and the statute of limitations. An opponent [*2]who is properly served with a demand or notice of intention to arbitrate that complies with the statutory formalities specified in CPLR §7503 ) must apply to stay arbitration within twenty days or he will be precluded thereafter from raising the threshold defenses in court. Courts treat the twenty-day time limit to apply for a stay under CPLR §7503 ) as a statute of limitations, meaning that they are powerless to entertain a late application addressed to the threshold questions (see Aetna Life & Casualty Co. v Stekardis, 34 NY2d 182 (1974). If the demand or notice was served by mail, as is the case at bar, the twenty-day period begins to run upon the party's receipt of the document. (Knickerbocker Insurance Co. v Gilbert, 28 NY2d 57 [1971]). It is uncontroverted that the demand was sent January 6, 2006 and received by GEICO on January 9, 2006. As such Geico had twenty days from January 9, 2006 to seek judicial intervention. The twentieth day after receipt of the demand for arbitration was Sunday, January 29, 2006. Compliance with the twenty-day time limit, like any time period under the CPLR, is calculated in accordance with General Construction Law §25-a. Thus, if the last day to make application for a stay (the twentieth day) falls on a Saturday, Sunday or public holiday, the petitioner gets until the next business day (see American Casualty Co. v McCoy, 138 AD2d 485 [2d Dept. 1988]). Therefore, initiating this action on Monday January 30, 2006 was timely, and the instant proceeding was properly commenced.

It is well settled that "on an application to stay arbitration, a trial or evidentiary hearing is required if there is any disputed issue of fact" (see Kahn v Biernbaum, 55 AD2d 529 [1st Dept. 1976]). GEICO established a prima facie case that the Anower vehicle was covered by Hudson Insurance Company with the submission of the police report, and the New York State Insurance Department DMV Insurance Codes and Company Contacts. In the instant action an evidentiary hearing is not required since the undisputed evidence is that the offending vehicle was insured. Additionally, the respondent did have the opportunity to controvert the petitioner's claim that the offending vehicle was insured, yet chose to not refute that claim and defended this motion on the sole grounds of untimeliness.

Accordingly, GEICO's motion to permanently stay arbitration is granted, and petitioner should serve a copy of this order on the arbitral tribunal. This constitutes the judgment of the court.

Dated: March 28, 2006ENTER:

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J.S.C.