Commerce & Industry Insurance v. Weber

240 A.D.2d 742, 660 N.Y.S.2d 1001, 1997 N.Y. App. Div. LEXIS 7130

Opinion

In a proceeding to permanently stay arbitration of an underinsured motorist claim pursuant to CPLR article 75, the petitioner appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated July 23, 1996, which denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, and the petition is granted.

The offset provision relied upon by the petitioner insurance carrier is enforceable because the policy contains a single, combined limit of uninsurance /underinsurance covered by one premium and a combined endorsement for uninsured and underinsured coverage (see, Matter of Nationwide Ins. Co. v Ohrablo, 236 AD2d 541; Matter of Allstate Ins. Co. [Stolarz— N. J. Mfrs. Ins. Co.], 81 NY2d 219, 223, 230; Matter of Nationwide Mut. Ins. Co. v Damaskinos, 238 AD2d 511; Matter of Nationwide Ins. Co. [Winn], 215 AD2d 958). Moreover, because the amount which the respondent received from the tortfeasor’s insurer exceeds the amount of underinsured motorist benefits provided under the subject policy, the petitioner is entitled to a permanent stay of arbitration of the respondent’s claim (see, Matter of Nationwide Mut. Ins. Co. v Damaskinos, supra). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.