Opinion
April 8, 1996
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is affirmed, with costs.
The appellant, who was insured by the petitioner, was involved in an automobile accident with another vehicle. The appellant settled with the liability insurance carrier of the driver of the other vehicle without the permission of the petitioner, and thus forfeited his eligibility for underinsured motorist benefits pursuant to the terms of his policy ( see, Matter of State Farm Auto. Ins. Co. v. Blanco, 208 A.D.2d 933).
We find no competent evidence in the record to support the appellant's contention that the petitioner knew of his execution of a general release in favor of the driver of the other vehicle several months prior to its commencement of this proceeding and inexcusably failed to promptly give a written notice of disclaimer ( cf., Bernstein v. Allstate Ins. Co., 199 A.D.2d 358). The appellant's failure to obtain the petitioner's consent prior to his settlement with the driver of the other vehicle warrants the granting of the petitioner's application to permanently stay arbitration ( see, Matter of Allstate Ins. Co. v. Bruzzano, 212 A.D.2d 528; Matter of State Farm Auto. Ins. Co. v. Blanco, supra; Matter of Travelers Indem. Co. [Levy], 195 A.D.2d 35; Matter of State Farm Mut. Ins. Co. v. Donath, 164 A.D.2d 889). Bracken, J.P., Rosenblatt, O'Brien and Goldstein, JJ., concur.