Phoenix Insurance v. Kantlis

Appellate Division of the Supreme Court of New York

Phoenix Insurance v. Kantlis

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 20, 2005

StatusPublished

This text of 14 A.D.3d 418 (Phoenix Insurance v. Kantlis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phoenix Insurance v. Kantlis, 14 A.D.3d 418, 787 N.Y.S.2d 868, 2005 N.Y. App. Div. LEXIS 475 (N.Y. Ct. App. 2005).

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Opinion

[419]*419Judgment, 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.

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[419]*419Judgment, 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.

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Bluebook (online)

14 A.D.3d 418, 787 N.Y.S.2d 868, 2005 N.Y. App. Div. LEXIS 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-insurance-v-kantlis-nyappdiv-2005.

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