Garcia v. State Farm Insurance

232 A.D.2d 488, 648 N.Y.S.2d 340, 1996 N.Y. App. Div. LEXIS 10159

Opinion

—In a proceeding pursuant to CPLR article 75 to compel arbitration of an underinsured motorist claim, State Farm Insurance Company appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated August 21, 1995, which granted the petitioner’s application.

Ordered that the order is reversed, on the law, with costs, and the application is denied.

As a condition precedent to payment of underinsurance, "the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (Insurance Law § 3420 [f] [2]). Here, the petitioner failed to establish that she exhausted all insurance policies covering the offending vehicle. Accordingly, the Supreme Court should have denied the application to compel arbitration. O’Brien, J. P., Joy, Friedmann and Krausman, JJ., concur.