| Matter of Unitrin Auto & Home Ins. Co. v Gelbstein |
| 2013 NY Slip Op 05749 [109 AD3d 663] |
| August 28, 2013 |
| Appellate Division, Second Department |
| In the Matter of Unitrin Auto and Home InsuranceCompany, Appellant, v Dina Gelbstein, Respondent. |
—[*1] Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), forrespondent.
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stayarbitration of a claim for uninsured motorist benefits, the petitioner appeals from an orderof the Supreme Court, Kings County (Solomon, J.), entered April 24, 2012, which deniedthe petition.
Ordered that the order is reversed, on the law, with costs, and the petition topermanently stay arbitration is granted.
When a policyholder purchases supplemental uninsured/underinsured motorist(hereinafter SUM) coverage in New York, he or she is insuring against the risk that atortfeasor's underinsurance (or complete lack of insurance) will provide less protectionfor the policyholder than the policyholder provides to others when at fault in causingbodily injury (see Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681,687 [1994]; Matter of AllstateIns. Co. v Rivera, 12 NY3d 602, 608 [2009]; Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196,204 [2007]; Weiss v Tri-StateConsumer Ins. Co., 98 AD3d 1107, 1110 [2012]). SUM coverage is not a"stand-alone policy to fully compensate the insureds for their injuries" (Weiss vTri-State Consumer Ins. Co., 98 AD3d at 1110).
Here, the respondent, who was struck by a car while walking in the street, had anautomobile policy of her own. In that policy, she chose to provide coverage in theamount of $100,000 per person in the event she was at fault in causing bodily injuries.By paying for SUM coverage in the amount of $100,000 per person, she also ensuredthat she was protected for that same amount in the event that an uninsured orunderinsured motorist caused her to sustain injuries. Although the respondent wasinjured, she received $400,000 from the tortfeasors, which is $300,000 more than thecoverage she provided to others. Consequently, under paragraph 6 of her SUMendorsement, the amount she was entitled to recover under her SUM coverage wasreduced to zero. Although the respondent had the right to demand arbitration (cf.S'Dao v National Grange Mut. Ins. Co., 87 NY2d 853 [1995]), arbitration wouldhave been academic (see Matterof Liberty Mut. Ins. Co. v Walker, 84 AD3d 960, 961-962 [2011]).Consequently, the Supreme Court erred in denying the petition to permanently stayarbitration of her claim for SUM benefits.[*2]
The parties' remaining contentions either arewithout merit or need not be addressed in light of this determination. Balkin, J.P., Hall,Lott and Sgroi, JJ., concur.