| Matter of State Farm Mut. Auto. Ins. Co. v Juma |
| 2007 NY Slip Op 08082 [44 AD3d 963] |
| October 23, 2007 |
| Appellate Division, Second Department |
| In the Matter of State Farm Mutual Automobile InsuranceCompany, Appellant, v Zaileen Juma, Respondent. |
—[*1] Kelner & Kelner, New York, N.Y. (Joshua D. Kelner of counsel), for respondent.
In a proceeding pursuant to CPLR article 75, in effect, to permanently stay arbitration of aclaim for supplemental underinsured motorist benefits, the petitioner appeals from an order of theSupreme Court, Suffolk County (Weber, J.), dated August 10, 2006, which denied the petitionand granted the respondent's cross motion to compel arbitration.
Ordered that the order is reversed, on the law, with costs, the petition, in effect, topermanently stay arbitration is granted, and the cross motion to compel arbitration is denied.
A party will not be compelled to arbitrate absent evidence affirmatively establishing that theparties expressly agreed to arbitrate their disputes (see Matter of Waldron [Goddess], 61NY2d 181 [1984]; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1 [1979]). "Theagreement to arbitrate must be express, direct, and unequivocal as to the issues or disputes to besubmitted to arbitration" (see Gangel v DeGroot, 41 NY2d 840, 841 [1977]). Similarly, "'where the provisions of the policy are clear and unambiguous, they must be given their plain andordinary meaning, and courts should refrain from rewriting the agreement' " (Raino vNavigators Ins. Co., 268 AD2d 419, 420 [2000], quoting Government Empls. Ins. Co. vKligler, 42 NY2d 863, 864 [1977]). Here, it is clear that there was no agreement to arbitratecontained in the subject automobile insurance policy issued by the petitioner to the respondent.Accordingly, since the subject policy did not provide for arbitration of the subject underinsuredmotorist claim, the Supreme Court erred in, inter alia, denying the petition, in effect, topermanently stay arbitration (see Matter [*2]of State FarmMut. Auto. Ins. Co. v Torcivia, 277 AD2d 321 [2000]). Schmidt, J.P., Fisher, Lifson andCarni, JJ., concur.