— Appeal from a judgment (denominated order and judgment) of the Supreme Court, Erie County (Joseph G. Makowski, J), entered December 22, 2008 in a proceeding pursuant to CPLR article 75. The judgment confirmed the arbitration award.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the same memorandum as in Matter of New Hampshire Ins. Co. (Bobak) (72 AD3d 1647 [2010]).
All concur except Martoche, J.P., and Green, J., who dissent and vote to affirm in the same dissenting memorandum as in Matter of New Hampshire Ins. Co. (Bobak) (72 AD3d 1647, 1650-1651 [2010]). Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.