Friedman v. Allstate Insurance

268 A.D.2d 558, 703 N.Y.S.2d 198, 2000 N.Y. App. Div. LEXIS 931

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2000
• Status: Published

Opinion

—In an action to recover underinsured motorist benefits pursuant to an automobile insurance policy, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated January 8, 1999, which granted the defendant’s motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

It is undisputed that the plaintiffs failed to obtain the written consent of their insurance carrier, the defendant, Allstate Insurance Company (hereinafter Allstate), before settling the underlying negligence action with the tortfeasor, and that such consent was required by the underinsurance motorist coverage provisions of the Allstate policy. Furthermore, in executing a release in favor of the tortfeasor, the plaintiffs failed to preserve Allstate’s subrogation rights. Under the circumstances, the plaintiffs are precluded from asserting a claim for benefits under the underinsurance motorist provisions of the policy (see, Aetna Cas. & Sur. Co. v Longo Prod., 247 AD2d 497; Matter of State Farm Fire & Cas. Co. v Zyburo, 215 AD2d 566).

The plaintiffs’ remaining contentions are either unpreserved for appellate review or have been rendered academic in light of our determination. Mangano, P. J., Thompson, Altman and Luciano, JJ., concur.