In re the Arbitration between Williams

64 A.D.2d 637, 406 N.Y.S.2d 868, 1978 N.Y. App. Div. LEXIS 12427

Opinion

—In proceedings to stay arbitration, Amoco Oil appeals (1) from a judgment of the Supreme Court, Nassau County, entered January 6, 1977, which granted the application of respondent New Hampshire Insurance Company to stay arbitration demanded by the claimant as to the payment of uninsured motorist benefits and determined that the coverage afforded to the claimant by Amoco Oil was primary and that the coverage afforded by New Hampshire was secondary, and (2) from a further judgment of the same court, dated March 30, 1977, which granted New Hampshire’s application to permanently stay arbitration demanded by the claimant as to the payment of no-fault benefits. Judgments affirmed, with separate bills of $50 costs and disbursements to the New Hampshire Insurance Company for each appeal. In our opinion, the papers submitted sustain a finding that the claimant was "occupying” the Amoco Oil vehicle at the time of the injury, within the meaning of the New Hampshire policy (see Estate of Cepeda v United States Fid. & Guar. Co., 37 AD2d 454; State-Wide Ins. Co. v Murdock, 31 AD2d 978; Matter of MVAIC v Oppedisano, 41 Mise 2d 1029). Accordingly, Amoco Oil is primarily liable for the payment of uninsured motorist benefits to the claimant and New Hampshire is secondarily liable. However, the claimant has already received workers’ compensation benefits in excess of the maximum uninsured motorist benefits and he is thus precluded from receiving uninsured motorist benefits from anyone. The claimant is not eligible to receive no-fault benefits under the New Hampshire policy. Titone, J. P., Suozzi, Margett and Hawkins, JJ., concur.