United States Fire Insurance v. Fotinakos

203 A.D.2d 296, 609 N.Y.S.2d 672, 1994 N.Y. App. Div. LEXIS 3138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1994
• Status: Published

Opinion

—In a proceeding to stay arbitration of an underinsured supplemental uninsurance motorists’ claim, the appeal is from an order of the Supreme Court, Kings County (Huttner, J.), dated July 24, 1991, which denied the application and directed the parties to proceed to arbitration.

Ordered that the order is reversed, on the law, with costs, the petition is granted, and arbitration of the respondent’s claim for underinsured motorists benefits is permanently stayed.

Pursuant to the express terms of the subject insurance policy, the petitioner is entitled to reduce the amount payable under the supplemental uninsured motorists’ coverage by all sums paid to the respondent for Workers’ Compensation (see, Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894). Here, the petitioner contends that the respondent has received Workers’ Compensation benefits exceeding the policy limits for supplemental uninsured motorists’ coverage, a claim that he does not controvert. Under the circumstances, the petition to stay arbitration of the respondent’s claim for additional underinsured motorists’ benefits should have been granted (see, Matter of General Acc. Ins. Co. v Bailey, 178 AD2d 924, 925). We note that the respondent’s reliance on Regulation 35-D (see, 11 NYCRR 60-2.0 et seq.) is misplaced. The regulation in question, applicable to policies issued or renewed on or after October 1, 1993, has no bearing on the subject policy which was issued on November 1, 1989, and which was in effect until November 1, 1990. Balletta, J. P., Ritter, Copertino and Goldstein, JJ., concur.