| Matter of Progressive Northeastern Ins. Co. v Scalamandre |
| 2008 NY Slip Op 04708 [51 AD3d 932] |
| May 20, 2008 |
| Appellate Division, Second Department |
| In the Matter of Progressive Northeastern Insurance Company,Respondent, v Maria Scalamandre, Appellant. |
—[*1] Teresa Girolamo, Selden N.Y., for respondent.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsuredmotorist claim, Maria Scalamandre appeals from an order of the Supreme Court, Suffolk County(Spinner, J.), dated June 27, 2007, which granted the petition.
Ordered that the order is affirmed, with costs.
The appellant was injured when her automobile collided with a four-wheeled "Raptor Quad"all-terrain vehicle (hereinafter ATV) at an intersection of public streets in Babylon. Theappellant's car was insured at the time by Progressive Northeastern Insurance Company(hereinafter Progressive) and the ATV was uninsured. The appellant submitted a demand forarbitration seeking uninsured motorist (hereinafter UM) benefits under her Progressive policy.Progressive sought to permanently stay arbitration on the ground that the ATV did not constitutean "uninsured motor vehicle." The Supreme Court granted the petition. We affirm.
Contrary to the appellant's contention, Progressive's policy is not ambiguous. A plain readingof the language contained in the subject policy leads to the conclusion that a four-wheeled ATVdoes not constitute a "motor vehicle" for purposes of invoking the policy's UM endorsement (see Matter of Progressive Ins. Cos.[Nemitz], 39 AD3d 1121 [2007]; see generally Sanabria v American Home Assur.Co., 68 NY2d 866 [1986]; BassukBros. v Utica First Ins. Co., 1 AD3d 470 [2003]). In addition, [*2]although UM coverage extends to all "motor vehicles," as definedby Vehicle and Traffic Law § 125 (see Insurance Law § 5202 [a]; Matterof Country-Wide Ins. Co. v Wagoner, 45 NY2d 581 [1978]), ATVs are specifically excludedfrom the definition of motor vehicles set forth therein. Moreover, unlike the situation inMatter of Nationwide Mut. Ins. Co. v Riccadulli (183 AD2d 111 [1992]), wherein thethree-wheeled ATV involved could be considered a motorcycle, thereby rendering UM benefitsavailable, the "Raptor Quad" ATV was a four-wheeled vehicle. Consequently, this ATV does notfit the statutory description of a motorcycle, which is limited to a vehicle with no more than"three wheels in contact with the ground" (Vehicle and Traffic Law § 123; seeVehicle and Traffic Law § 125-a). Accordingly, the court properly granted the petitionto permanently stay arbitration of the appellant's claim for UM benefits (see Matter of Liberty Mut. Fire Ins. Co. vRondina, 32 AD3d 1230 [2006]). Rivera, J.P., Santucci, Eng and Chambers, JJ., concur.