Opinion
May 15, 1995
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Ordered that the order is affirmed, with costs.
The appellant failed to obtain written consent from the petitioner prior to settling the underlying negligence action with the tortfeasor as required by the policy of insurance, and failed to preserve the petitioner's subrogation rights in executing a release in favor of the tortfeasor. Thus, the appellant is precluded from asserting a claim for benefits under the underinsured motorist provisions of the insurance policy (see, Matter of Continental Ins. Co. v Canni, 192 A.D.2d 651; Matter of Aetna Cas. Sur. Co. v Scirica, 170 A.D.2d 448; Matter of State Farm Mut. Ins. Co. v Donath, 164 A.D.2d 889). Moreover, the record does not support the appellant's contention that the petitioner should be estopped from denying coverage because it failed to respond to a request for written consent within a reasonable time (cf., Matter of State Farm Mut. Ins. Co. v Del Pizzo, 185 A.D.2d 352; Matter of Aetna Cas. Sur. Co. v Crown, 181 A.D.2d 883).
The appellant's remaining contentions are either unpreserved for appellate review or without merit. Miller, J.P., Ritter, Pizzuto and Santucci, JJ., concur.