Opinion
February 4, 1998
Present — Green, J. P., Lawton, Wisner, Callahan and Fallon,
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the petition seeking a stay of underinsurance arbitration. Pursuant to the uninsured motorist coverage section of the policy, petitioner is entitled to offset the amount recovered by respondent in settlement of the underlying personal injury action (see, Matter of Allstate Ins. Co. [Stolarz-N. J. Mfrs. Ins. Co.], 81 N.Y.2d 219, 223; Matter of Lotito v. Metropolitan Prop. Cas. Ins. Co., 228 A.D.2d 443). We reject respondent's contention that petitioner is not entitled to enforce the offset provision on the ground that the policy sets forth underinsured motorist coverage in a separate endorsement (see, Matter of New York Cent. Mut. Fire Ins. Co. [McGill], 244 A.D.2d 865; Matter of Nationwide Ins. Co. [Winn], 215 A.D.2d 958, lv denied 87 N.Y.2d 807). The policy expressly incorporates the underinsured motorist coverage endorsement into the uninsured motorist coverage section (see, Matter of Nationwide Ins. Co. [Winn], supra, at 959). Further, "[t]he dispositive issue is whether there is a single combined limit of uninsured/underinsured motorist coverage, not whether there is a single endorsement" (Matter of New York Cent. Mut. Fire Ins. Co. [McGill], supra, at 866). (Appeal from Order of Supreme Court, Herkimer County, Parker, J. — Arbitration.)