Opinion
April 16, 1990
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the order is affirmed, with costs.
The appellant failed to obtain the insurer's written consent prior to compromising her claim against the motorist who allegedly caused her injuries, in contravention of the policy provisions governing underinsured motorist claims. Accordingly, the court properly granted the insurer's application for a permanent stay of the appellant's demand for arbitration concerning the insurer's denial of underinsured motorist benefits. Notably, the relevant policy provision states that underinsured motorist coverage will not apply where an insured "without [the insurer's] written consent, settles with any person or organization who may be liable" to the insured.
The record reveals that the appellant agreed with the offending motorist that her claim would be submitted to binding arbitration and that his exposure would be limited to no more than his $10,000 policy limit, irrespective of what sum the arbitrator ultimately awarded. Further, it was agreed that any litigation pending would be "dismissed with prejudice" and that the arbitrator's award would be final and binding with no "right of rehearing or appeal to any forum or court". Under the circumstances, where the appellant compromised, with prejudice, her claim against the offending motorist without obtaining the insurer's written consent or preserving its right of subrogation, the court properly stayed arbitration (see, Weinberg v. Transamerica Ins. Co., 62 N.Y.2d 379; State Farm Mut. Auto. Ins. Co. v. Taglianetti, 122 A.D.2d 40, 41). Kunzeman, J.P., Kooper, Sullivan and Harwood, JJ., concur.