| Matter of American Alternative Ins. Corp. v Pelszynski |
| 2011 NY Slip Op 05692 [85 AD3d 1157] |
| June 28, 2011 |
| Appellate Division, Second Department |
| In the Matter of American Alternative Insurance Corp.,Respondent, v Christopher R. Pelszynski, Appellant. |
—[*1] Hannigan Law Firm, PLLC, Latham, N.Y. (Terence S. Hannigan of counsel), forrespondent.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim forsupplemental underinsured motorist benefits, Christopher R. Pelszynski appeals from an order ofthe Supreme Court, Suffolk County (Cohen, J.), dated March 15, 2010, which granted thepetitioner's motion for leave to reargue its motion to stay arbitration, which was denied by orderof the same court dated January 27, 2010, and for leave to reargue its opposition to his crossmotion to compel arbitration, which had been granted by the order dated January 27, 2010, and,upon reargument, vacated the order dated January 27, 2010, and thereupon granted thepetitioner's motion to stay arbitration, and denied his cross motion to compel arbitration.
Ordered that the order dated March 15, 2010, is affirmed, with costs.
Christopher R. Pelszynski, a volunteer fireman for the North Babylon Volunteer FireCompany (hereinafter the Fire Company), was driving to the scene of an emergency when his carwas struck by another vehicle. He settled with the owners of that vehicle for the maximumamount of bodily injury coverage allowable under their auto insurance policy. He then soughtsupplemental underinsured (hereinafter SUM) coverage under the Fire Company's CommercialGeneral Liability insurance policy issued by the petitioner, American Alternative Insurance Corp.(hereinafter AAIC).
AAIC disclaimed coverage and moved to stay arbitration. Pelszynksi cross-moved to compelarbitration. The Supreme Court denied AAIC's motion and granted Pelszynski's cross motion.AAIC moved for leave to reargue its motion to stay arbitration and its opposition to Pelszynski'scross motion to compel arbitration. The Supreme Court granted the motion for leave to reargueand, upon reargument, vacated the prior order, and thereupon granted AAIC's motion and deniedPelszynski's cross motion. Pelszynski appeals.
A motion for leave to reargue "shall be based upon matters of fact or law allegedlyoverlooked or misapprehended by the court in determining the prior motion, but shall not includeany matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). The determination togrant [*2]leave to reargue a motion lies within the sounddiscretion of the court (see Barnett vSmith, 64 AD3d 669, 670-671 [2009]; Long v Long, 251 AD2d 631 [1998];Loland v City of New York, 212 AD2d 674 [1995]). Here, the Supreme Courtprovidently exercised its discretion in granting AAIC's motion for leave to reargue.
Furthermore, upon reargument, the Supreme Court correctly determined that Pelszynski isnot an insured under the following definition of "insured" in the SUM endorsement: "You, as thenamed insured and, while residents of the same household, your spouse and the relatives of eitheryou or your spouse." "You" in the definition refers to the Fire Company, which cannot have aspouse or relative (see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211, 214[1985]; Siragusa v Granite State Ins.Co., 65 AD3d 1216, 1218 [2009]; Hogan v CIGNA Prop. & Cas. Cos., 216AD2d 442, 443 [1995]). Contrary to Pelszynksi's contention, this interpretation of the SUMendorsement does not render the coverage meaningless, as the endorsement also includes, in thedefinition of an insured, any person in a vehicle insured for SUM benefits under the policy(see Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d at 214-215; Siragusa vGranite State Ins. Co., 65 AD3d at 1218). Pelszynski does not, however, fall within thatdefinition of an insured either, since his car was not insured for SUM benefits under the policy.Rivera, J.P., Eng, Roman and Miller, JJ., concur.