Opinion
CA 02-01363
December 30, 2002.
Appeal from an order of Supreme Court, Erie County (Lane, J.), entered February 5, 2002, which granted the petition seeking a permanent stay of arbitration of respondent's claim for supplemental uninsured motorist benefits.
NICHOLAS, PEROT STRAUSS, P.C., AKRON (LAWRENCE A. PEROT OF COUNSEL), FOR RESPONDENT-APPELLANT.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted the petition seeking a permanent stay of arbitration of respondent's claim for supplemental uninsured motorist (SUM) benefits. Respondent was injured in an automobile accident on September 29, 1999 but did not provide petitioner with notice of her SUM claim until September 14, 2001. The insurance policy issued to respondent by petitioner required her to give notice of a SUM claim "as soon as practicable," i.e., "with reasonable promptness after [she] knew or should reasonably have known that the tortfeasor was underinsured" ( Matter of Metropolitan Prop. Cas. Ins. Co. v. Mancuso, 93 N.Y.2d 487, 495). Respondent failed to meet her burden of establishing a reasonable excuse for her nearly two-year delay in giving notice ( see Matter of Allstate Ins. Co. [Earl], 284 A.D.2d 1002, 1004; Unwin v. New York Cent. Mut. Fire Ins. Co., 268 A.D.2d 669, 670-671). "The nature and extent of respondent's injury did not change from the time of the accident until the time when respondent provided petitioner with notice of the SUM claim" ( Matter of New York Cent. Mut. Fire Ins. Co. [Moore], 280 A.D.2d 923; see Unwin, 268 A.D.2d at 671). Respondent also failed to demonstrate that she exercised due diligence in ascertaining the tortfeasor's policy limits ( see Matter of Nationwide Mut. Ins. Co. v. DiGregorio, 294 A.D.2d 579, 580-581; Matter of Interboro Mut. Indem. Ins. Co. v. Sarno, 277 A.D.2d 454, 455).