Aetna Casualty & Surety Co. v. Cebularz

—In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Collins, J.), entered February 22, 1991, which denied its application to vacate the arbitration award and granted the respondent’s cross motion to confirm the award.

Ordered that the order and judgment is affirmed, without costs or disbursements.

The appellant waived its contention that the arbitrator exceeded his authority by making an award to the respondent after the limits of the uninsured endorsement had been previously exhausted. This ground should have been raised in an application to stay arbitration (see, CPLR 7503). Although such a proceeding was commenced, it was withdrawn as untimely and, moreover, was not based on the ground that the arbitrator had no authority to proceed. Inasmuch as this contention is the sole basis for the present appeal, the judgment must be affirmed (see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 309 ; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582-583 ). Balletta, J. P., Miller, Ritter and Santucci, JJ., concur.