MATTER OF COMMERCE AND INDUS. INS. v. NESTER

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

The absence of an agreement to arbitrate is not a basis upon which either a person who has been served with a notice of intent to arbitrate or a person who has participated in arbitration, may seek to have the award vacated ( see, CPLR 7511 [b] [1], [2] [ii]; Crum Forster Commercial Ins. v. Yakar, 208 A.D.2d 833). Balletta, J.P., Copertino, Santucci and Hart, JJ., concur.