Glens Falls Insurance Company v. Smith

221 A.D.2d 529, 634 N.Y.S.2d 395, 1995 N.Y. App. Div. LEXIS 11844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1995
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, the appeal is from an order of the Supreme Court, Nassau County (Yachnin, J.), dated April 20, 1994, which granted the petition.

Ordered that the order is affirmed, with costs.

The record establishes that the appellant prejudiced the petitioner’s subrogation rights by signing a general release in favor of the tortfeasor (see, Weinberg v Transamerica Ins. Co., 62 NY2d 379; Matter of State Farm Fire & Cas. Co. v Zyburo, 215 AD2d 566). The petition to stay arbitration provided a sufficient and timely notice of disclaimer on this ground (see, e.g., Matter of Allcity Ins. Co. [Jiminez], 78 NY2d 1054; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636). Accordingly, the Supreme Court properly granted the petitioner’s application to permanently stay arbitration of the appellant’s claim for underinsured motorist benefits.

The appellant’s remaining contentions are either without merit or academic in light of our determination. Bracken, J. P., Miller, Altman and Florio, JJ., concur.