Opinion
CA 06-00015.
September 22, 2006.
Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered May 5, 2005. The order granted the application for a permanent stay of arbitration.
BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR RESPONDENTS-APPELLANTS.
HURWITZ FINE, P.C., BUFFALO (SCOTT C. BILLMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Respondents served their automobile insurer, petitioner, with a demand for arbitration after petitioner refused to provide uninsured motorist coverage for injuries sustained by respondents' son while he was a passenger on an uninsured allterrain vehicle (ATV). Contrary to respondents' contention, Supreme Court properly granted petitioner's application pursuant to CPLR 7503 (c) for a permanent stay of arbitration on the ground that respondents' claim is not within the scope of petitioner's uninsured motorist coverage. "As a matter of law, [uninsured motorist] coverage extends to all motor vehicles as defined by Vehicle and Traffic Law § 125" ( Harper v Lumbermen's Mut. Cas. Co., 174 AD 2d 1031, 1031, lv dismissed 78 NY2d 1110; see Insurance Law § 5202 [a]; Matter of Askey [General Ace. Fire Life Assur. Corp.], 30 AD2d 632, affd 24 NY2d 937). Because ATVs are specifically excluded from the definition of motor vehicles set forth in Vehicle and Traffic Law § 125, the court properly concluded that the uninsured motorist endorsement in the policy issued by petitioner to respondents does not encompass the claim for the injuries sustained by respondents' son ( see Harper, 174 AD2d 1031; cf. Matter of Nationwide Mut. Ins. Co. v Riccadulli, 183 AD2d 111).