Commercial Union Insurance v. Mandel

234 A.D.2d 544, 651 N.Y.S.2d 174, 1996 N.Y. App. Div. LEXIS 13263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1996
• Status: Published

Opinion

—In a proceeding pursuant to CPLR 7503 to stay arbitration of an underinsured motorist claim, the appeal is from an order of the Supreme Court, Nassau County (Kohn, J.), dated February 14, 1995, which granted the application to stay arbitration. Presiding Justice Mangano has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the order is reversed, on the law, with costs, the application is denied, and the parties are directed to proceed with arbitration.

The application to stay arbitration should have been denied. Since the policy at issue contained a separate coverage clause for underinsured motorist coverage, any offset provision for sums received from the underinsured party’s insurer is invalid (see, Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, affd 119 AD2d 1017, affd 69 NY2d 777; cf., Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223-225).

In view of our determination, we do not reach the parties’ remaining contentions. Mangano, P. J., Miller, Ritter and Copertino, JJ., concur.