| Matter of Allstate Ins. Co. v Sung Sun Ju |
| 2008 NY Slip Op 08730 [56 AD3d 551] |
| November 12, 2008 |
| Appellate Division, Second Department |
| In the Matter of Allstate Insurance Company,Appellant, v Sung Sun Ju et al., Respondents, et al., Proposed AdditionalRespondents. |
—[*1] Sackstein Sackstein & Lee, LLP, Garden City, N.Y. (Laurence D. Rogers of counsel), forrespondents.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of anunderinsured motorist claim, the petitioner appeals from (1) an order of the Supreme Court,Nassau County (Martin, J.), dated September 11, 2007, as amended April 4, 2008, which grantedthe respondents leave to reargue the petition, which had been granted by a prior order of the samecourt dated December 22, 2006, and, upon reargument, denied the petition, and (2) an order ofthe same court dated April 4, 2008, which amended the order dated September 11, 2007.
Ordered that order dated September 11, 2007, as amended April 4, 2008, is affirmed; and it isfurther,
Ordered that the appeal from the order dated April 4, 2008 is dismissed as academic; and it isfurther,
Ordered that one bill of costs is awarded to the respondents.[*2]
We decline the invitation of the petitioner AllstateInsurance Company "made for the first time on appeal, to reconsider our case law. . . and hold that the Superintendent of Insurance exceeded his authority inpromulgating 11 NYCRR 60-2.3 (f) (I) (c) (3) (ii)" because that regulation expanded upon thedefinition of an underinsured motorist as set forth in Insurance Law § 3420 (f) (2) (A) (Matter of Allstate Ins. Co. v Dawkins,52 AD3d 826 [2008]; seeRaffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196 [2007]).
The petitioner's remaining contention is without merit. Lifson, J.P., Santucci, Balkin andBelen, JJ., concur.