Petitioner has applied to the Court for an Order imposing a stay of arbitration and for an Order directing Respondent to submit a proof of loss, submit to an examination under oath, and submit to a physical examination (CPLR 7503; CPLR 3102).

Respondent filed application for arbitration under the uninsured motorist (UM) provisions of her automobile policy with her insurer Progressive Insurance Company, a policy apparently underwritten by Petitioner in this action.

Petitioner alleges that there are several conditions precedent that need to be satisfied before arbitration is to proceed, including filing of a proof of loss, conducting an examination under oath, and conducting a physical examination of Respondent. A copy of the policy was not provided detailing those obligations.

Additionally, Petitioner seeks a Court Order to direct Respondent to provide the documentation and submit to the discovery requested.

Respondent opposes both aspects of the application, arguing that Petitioner was aware of the probable claim by reason of correspondence provided to it within two weeks of the accident giving rise to the claim. Respondent asserts that there have been several items of information provided to Petitioner; that appropriate medical and unemployment releases were forwarded as well as medical documentation; that a recorded statement was provided to Petitioner; that independent medical examinations were conducted at the request of Petitioner on two separate occasions. Respondent asserts that the request for stay of arbitration at this time is improper and untimely. [*2]

It is not disputed here that an insurer has a right to obtain information to evaluate the claims made. However, the right to secure the discovery of the information is considered waived if the insurer unreasonably delays the exercise of that right, and a stay of arbitration is not warranted in such circumstance (Matter of Allstate Ins. Co.[Urena],208 AD2d 623). A delay of several months' (Matter of Allstate [Urena],208 AD2d 623), five months(Matter of Connecticut Indemnity Ins. Co. [Laperla], 21 AD3d 1262 [4th Dept.]), eleven months (Matter of Allstate Ins. Co. [Faulk], 250 AD2d 674), seventeen months (Matter of State-Wide Ins. Co. [Womble], 25 AD3d 713) have been considered unreasonable.

Delay is reasonable, however, if it is with reasonable justification, such as continuing settlement negotiations and a recently revealed injury graver than originally understood (Matter of Metropolitan Prop. & Cas. Ins. Co. [Keeney]241 AD2d 455), or an unresolved disclaimer issue that would prevent coverage ( Interboro Mut. Indem. Ins. Co. v Wiener, 267 AD2d 310).

Petitioner argues initially that all the prior information Respondent provided was to its no fault department and issues for that department are different than those to be resolved by the arbitration. The Court disagrees with this argument as a justification for a stay. Respondent's initial correspondence to her insured was addressed to the uninsured/underinsured' unit and specified the intent to make an underinsurance/uninsured' claim (Respondent Exhibit A). The correspondence from Petitioner to Respondent's counsel (Petitioner's Exhibit A), states an acknowledgment of receipt of the Notice of Intent, referencing it as one for an uninsured claim, and providing direction for future contact with Petitioner, which future contact appears to have been followed. Petitioner cannot now claim that they erected a separate wall, having indicated where the Respondent was to send information in support of her claim, and then arguing here, essentially, that it was sent to the wrong reviewing party.

Petitioner also argues that its conduct was not a waiver of its rights because it reserved them in its correspondence with Respondent's counsel. However, such a reservation of rights is not open ended, and a reasonable time to exercise such rights is the rule, else they are waived (Matter of Connecticut Indemnity Ins. Co. [Laperla], 21 AD3d 1262 [4th Dept.]).

Lastly, Petitioner argues that medical changes in Respondent's condition warrant imposing a stay to permit additional discovery. It appears from documents provided that Respondent was examined by Petitoner's selected medical providers on two occasions, that Respondent advised Petitioner of a surgical procedure, which surgical procedure was apparently consistent with Petitioner's medical examiner's opinion, that Respondent provided Petitioner with the surgical records following the procedure.

The exhibits provided indicate that the medical condition said to be recent does not appear to be a changed circumstance, given that Petitioner's own examiner apparently contemplated it. Further, there is no indication that Petitioner issued any demand for formal discovery until after the arbitration demand and its concomitant fee were forwarded.

In the present matter the Petitioner's demand for proof of loss is dated January 26, 2009, for an accident that is said to have occurred in August 2007, and for which notice was provided in August 2007. The demand for an examination under oath is contained in the papers submitted in this proceeding, also dated January 26, 2009, and although Petitioner says it did not have an opportunity to conduct one earlier, Respondent apparently underwent a telephone interview with Petitioner a couple months after the accident. [*3]

Petitioner also asserts it did not have an opportunity to conduct a physical examination of Respondent. However, the submissions to the Court indicate it did examine her on two occasions. Further, records were made available pursuant to signed authorizations given to Petitioner within two months of the accident.

There is no evidence provided of any continuing settlement negotiations or any unexpected information of more serious injuries (see Matter of Metropolitan Prop. & Cas. [Keeney]241 AD2d 455). The recent surgery of Petitioner was ten weeks prior to the discovery demands, and records of it were promptly provided, but importantly, it was a contemplated procedure. There is no showing of any satisfactory justification for the delay by Petitioner.

Under the totality of the circumstances here, the delay by Petitioner is unreasonable and it is not entitled to a stay.

Disclosure to aid in arbitration' can be directed (CPLR 3102[c]). The absence of a stay does not prevent disclosure if circumstances warrant it. (Matter of Allstate Ins. Co.[Urena]208 AD2d 623). It would be an aid in arbitration, the Court believes, for there to be a further medical examination, if Petitioner is so advised, and if Petitioner is able to schedule one in advance of any arbitration hearing that might be scheduled. Such a hearing should not be postponed, however, if Petitioner has not been diligent in arranging such an examination. Respondent should cooperate in attending such an examination if one is scheduled.

In accord with the foregoing, it is

ADJUDGED, that Petitioner's delay in demanding discovery from its acknowledgment of receipt of Notice of Intent to Claim on September 4, 2007 to January 26, 2009 is unreasonable and formal discovery is deemed waived, and it is further

ADJUDGED, that disclosure in the form of a further medical examination may aid in arbitration and Respondent should submit to one if timely scheduled by Petitioner, and it is

ORDERED, that the Petition for a stay of arbitration is Denied and dismissed, and it is further

ORDERED, that the Petition to compel disclosure is Granted in part, as herein detailed, and otherwise Denied and dismissed.

ENTER

Dated: March 2, 2009

Lowville, NY

Joseph D. McGuire, J.S.C.

The signing of this Memorandum/Judgment & Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of the rule with regard to filing, entry, and Notice of Entry.