General Accident Insurance v. Lobritto

240 A.D.2d 493, 658 N.Y.S.2d 438, 1997 N.Y. App. Div. LEXIS 6116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1997
• Status: Published

Opinion

In a proceeding to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated September 23, 1996, which granted the motion of the respondent Stephen Lobritto for reargument and, upon reargument, denied the petition.

Ordered that the order is affirmed, with costs.

Contrary to the contention of the petitioner insurance carrier General Accident Insurance Company (hereinafter General Accident), the policy at issue provides coverage for the event that caused the respondent Stephen Lobritto’s injuries but for a policy "exclusion” (see, Planet Ins. Co. v Bright Bay Classic Vehicles, 75 NY2d 394; Zappone v Home Ins. Co., 55 NY2d 131; Matter of Unigard Ins. Group v Bothwell, 237 AD2d 450). The nine-month delay by General Accident in denying the claim based on the policy exclusion precludes it from raising that exclusion as a defense to the claim, and, thus, the petition to permanently stay arbitration was properly denied on that ground (see, Zappone v Home Ins. Co., supra; Ward v Corbally, Gartland & Rappleyea, 207 AD2d 342; Farmers Fire Ins. Co. v Brighton, 142 AD2d 547). Mangano, P. J., Sullivan, Altman and McGinity, JJ., concur.