Summary
holding timely disclaimer of coverage was not required "because the noncoverage arose from a lack of inclusion"
Summary of this case from National Union Fire Insurance v. Univ. FabricatorsOpinion
2001-10871
Submitted September 30, 2002.
November 4, 2002.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the appeal is from an order of the Supreme Court, Dutchess County (Beisner, J.), dated November 19, 2001, which granted the petition and stayed arbitration.
Basso Associates, Poughkeepsie, N.Y. (Richard J. Burke, Jr., of counsel), for appellant.
Kornfeld, Rew, Newman Ellsworth, Suffern, N.Y. (Robert J. Ellsworth of counsel), for respondent.
Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the appellant's contention, the subject insurance policy did not provide underinsured motorist coverage for the underlying accident. Further, because the noncoverage arose from a lack of inclusion, not a policy exclusion, a timely disclaimer of coverage was not required (see Markevics v. Liberty Mut. Ins. Co., 97 N.Y.2d 646; Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185; Handelsman v. Sea Ins. Co., 85 N.Y.2d 96; Zappone v. Home Ins. Co., 55 N.Y.2d 131; Sphere Drake Ins. Co. v. Block 7206 Corp., 265 A.D.2d 78).
RITTER, J.P., ALTMAN, H. MILLER and COZIER, JJ., concur.