Nationwide Ins. Co. v. Sobiesiuk

• Decision Date: 19 July 1999
• Citation: 691 N.Y.S.2d 925
• Parties: In the Matter of NATIONWIDE INSURANCE COMPANY, respondent, v. Katrzyna SOBIESIUK, appellant.
• Court: New York Supreme Court — Appellate Division

Page 925

691 N.Y.S.2d 925

In the Matter of NATIONWIDE INSURANCE COMPANY, respondent, v. Katrzyna SOBIESIUK, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 19, 1999.

Decolator, Cohen & DiPrisco, P.C., Mineola, N.Y. (John V. Decolator of counsel), for appellant.

Robert Trestman, Plainview, N.Y., for respondent.

In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the appeal is from an order of the Supreme Court, Nassau County (Segal, J.), dated July 1, 1998, which granted the petition and permanently stayed arbitration.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the parties are directed to proceed to arbitration.

We agree with the appellant that there is no material distinction between the facts presented in the present case and those presented in Matter of Federal Ins. Co. v. Stechman, 192 A.D.2d 531, 595 N.Y.S.2d 815. In Matter of Federal Ins. Co. v. Stechman (supra) this court construed the terms of an insurance policy which contained a provision similar to the one now under review, obligating the insured to promptly forward to the insurer copies of legal papers served in connection with any action brought by the insured against the owner or driver of the offending vehicle. The term "legal papers", as used in the provision at issue in Stechman was determined to be ambiguous, and compliance with it was not a condition precedent to underinsured motorist coverage. The insured's failure to comply with the provision in Stechman did not, under the circumstances presented, result in a forfeiture of the right to underinsurance benefits (see also, Matter of Snyder v. Nationwide Mut. Ins. Co., 106 A.D.2d 388, 482 N.Y.S.2d 305; cf., Brown v. Motor Vehicle Acc. Ind. Corp., 33 A.D.2d 804, 307 N.Y.S.2d 633). We see nothing in the circumstances of the instant case which would remove it from the scope of the holding in Matter of Federal Ins. Co. v. Stechman (supra).

BRACKEN, J.P., THOMPSON, GOLDSTEIN, McGINITY, and SCHMIDT, JJ., concur.