Majority
p. 510In the Matter of Nationwide Insurance Company, Appellant, v Richard Kuchta, Respondent. [657 NYS2d 927]
—In a proceeding pursuant to CPLR article 75 for a permanent stay of arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Roberto, J.), dated March 22, 1996, which denied the petition and dismissed the proceeding.
Ordered that the order is reversed, on the law, with costs, the petition is granted, and arbitration is permanently stayed.
The policy at issue contains a single combined limit of uninsured and underinsured motorist coverage of $10,000. The petitioner was entitled to an offset of $10,000, which is the
p. 511
amount that the respondent recovered from the tortfeasor (see, Matter of Deckaj v State Farm Mut. Ins. Co., 230 AD2d 735 ; Matter of Allstate Ins. Co. [Stolarz-N.J. Mfrs. Ins. Co.], 81 NY2d 219 ; Matter of Nationwide Ins. Co. v Ohrablo, 236 AD2d 541 ; Matter of Lotito v Metropolitan Prop. & Cas. Ins. Co., 228 AD2d 443 ; Matter of Nationwide Ins. Co. [Winn], 215 AD2d 958 ; Matter of Zurich Ins. Co. v Wilburn, 212 AD2d 620 ). Since the respondent has exhausted his policy limit, there is nothing to arbitrate (see, Matter of Lotito v Metropolitan Prop. & Cas. Ins. Co., supra). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.
Cases cited
- Deckaj v. State Farm Mutual Insurance 230 AD2d 735 p. 511
- In re the Arbitration between Allstate Insurance & Stolarz 81 NY2d 219 p. 511
- Nationwide Insurance v. Ohrablo 236 AD2d 541 p. 511
- Lotito v. Metropolitan Property & Casualty Insurance 228 AD2d 443 p. 511
- In re the Arbitration between Nationwide Insurance & Winn 215 AD2d 958 p. 511
- Zurich Insurance v. Wilburn 212 AD2d 620 p. 511