Opinion
September 30, 1994
Appeal from the Supreme Court, Niagara County, Rath, Jr., J.
Present — Denman, P.J., Green, Balio, Doerr and Boehm, JJ.
Order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: Plaintiff was injured in a two-car accident. She and four other injured persons reached a settlement with the two carriers insuring those vehicles. The bodily injury coverage of $50,000 per accident on one of the vehicles was exhausted, but the bodily injury coverage of $300,000 on the second vehicle was not. Because the bodily injury coverage on one of the two vehicles was not exhausted, plaintiff failed to satisfy the statutory condition precedent to the recovery of underinsurance benefits, and the complaint should have been dismissed (see, Insurance Law § 3420 [f] [2]; Matter of Federal Ins. Co. v Watnick, 80 N.Y.2d 539, 546; Garcia v. Mercado, 194 A.D.2d 334).