Phoenix Insurance v. Kantlis

14 A.D.3d 418, 787 N.Y.S.2d 868, 2005 N.Y. App. Div. LEXIS 475

Opinion

Judgment, Supreme Court, New York County (Alice Schlesinger, J), entered August 18, 2003, which granted the petition for a permanent stay of arbitration, unanimously affirmed, without costs.

Respondent Kantlis breached a condition of the underinsured motorists endorsement to his policy by failing to obtain petitioner’s consent to settlement with the insurance carrier for one of the tortfeasors in the underlying personal injury action, thus vitiating coverage and disqualifying him from receiving these benefits (Matter of Integon Ins. Co. v Battaglia, 292 AD2d 527 [2002]; Matter of State Farm Mut. Auto. Ins. Co. v Hardina, 225 AD2d 486 [1996]). The petition could also have been granted on collateral estoppel grounds in light of Justice Edward H. Lehner’s June 2001 order granting a stay of a prior demand for arbitration in this matter, which necessarily decided the issue of the breach of the consent provision. Kantlis had a full and fair opportunity to contest the issue of his breach in that earlier proceeding, given that the issue was addressed in that petition (see Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). Concur—Buckley, P.J., Tom, Andrias, Marlow and Ellerin, JJ.