Opinion
Argued September 5, 2000.
October 10, 2000.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for underinsured motorist benefits, the appeal is from a judgment of the Supreme Court, Nassau County (Adams, J.), dated December 13, 1999, which granted the petition and permanently stayed the arbitration.
Mokotoff Mondshine, Garden City, N.Y. (Robert B. McKay of counsel), for appellant.
Bruno, Gerbino Macchia, LLP, Melville, N.Y. (Steven D. Brower of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.
The claimant was injured in an accident which involved an underinsured motorist. The monetary limits applicable to the bodily injury liability protection which covered that underinsured motorist were exhausted by settlement. Under these circumstances, the claimant is entitled to pursue his underinsured motorist claim. The Supreme Court erred in taking into account the payments received by the claimant from the insurer for a second, adequately insured, tortfeasor involved in the accident. "[T]hat adequately insured party's bodily injury liability coverage should not have been considered to defeat plaintiff's claim for underinsurance " (S'Dao v. National Grange Mut. Ins. Co., 87 N.Y.2d 853, 855; see also, Matter of Polesky v. GEICO Ins. Co., 241 A.D.2d 551; Matter of Nationwide Ins. Co. v. Freehill, 224 A.D.2d 532; Estate of Schutowich v. Allstate Ins. Co., 211 A.D.2d 747; Passaro v. Metropolitan Prop. Liab. Ins. Co., 128 Misc.2d 21, affd 124 A.D.2d 647).