Opinion
January 4, 1994
Appeal from the Supreme Court, New York County (Carol E. Huff, J.).
Respondent purchased a policy of automobile insurance from petitioner with liability limits of $100,000/300,000 for bodily injury, $25,000 property damage, and $10,000/20,000 uninsured motorist coverage. After an accident with another vehicle that was minimally insured, respondent settled with that vehicle's insurer for the $10,000 limit of that policy, and then served a demand upon petitioner for arbitration of an underinsured motorist claim in the amount of $100,000.
Uninsured motorist coverage (i.e., for bodily injury or death caused by an uninsured vehicle) is mandatory in this State (Insurance Law § 3420 [f] [1]), whereas additional underinsured motorist coverage (referred to in the statute as "supplementary uninsured motorists insurance for bodily injury") is available only "at the option of the insured" (§ 3420 [f] [2]). Where the insured fails to purchase such optional insurance, the coverage is not available (Matter of Liberty Mut. Ins. Co. v. Annunziato, 187 A.D.2d 429). The declaration page of respondent's policy indicates the statutory minimum uninsured motorist coverage ($10,000/20,000), with no indication of a supplementary endorsement for additional underinsured motorist coverage. That omission is conclusive (Matter of Liberty Mut. Ins. Co. v Alberto, 186 A.D.2d 658), except where proof is adduced that the insured paid for such additional coverage, or that it was mistakenly omitted from the policy (Matter of Empire Ins. Co. v Vitucci, 192 A.D.2d 484). This record is devoid of any such evidence. The petition for permanent stay of arbitration should have been granted.
Concur — Ellerin, J.P., Wallach, Kupferman and Rubin, JJ.