Opinion
June 9, 1997
Appeal from the Supreme Court, Orange County (Slobod, J.).
Ordered that the orders are affirmed, with one bill of costs.
The appellant insurance company contends that the award should have been reduced by the amount received by the petitioner from the tortfeasor. However, pursuant to the terms of the underinsurance endorsement at issue, other than offsets not relevant here, the policy provides only that "the limit of liability shall be reduced by all sums paid because of `bodily injury' by or on behalf of persons or organizations who may be legally responsible" (emphasis added). Here, since the aggregate amount awarded the petitioner from the appellant and the tortfeasor did not exceed the stated policy limits, the underinsurance endorsement was not violated. In any event, because the policy was issued prior to October 1, 1993, the effective date of Insurance Department Rule 35-D, and sets forth separate and distinct endorsements for underinsured and uninsured motorist coverage, a reduction in coverage provision would be unenforceable (see, e.g, Matter of Commercial Union Ins. Co. v. Mandel, 234 A.D.2d 544; Matter of Paolilli v. Aetna Ins. Co., 228 A.D.2d 683; 11 NYCRR 60.2 [now 60-1.2] et seq.; cf., Matter of Nationwide Ins Co. v. Ohrablo, 236 A.D.2d 541).
We have examined the appellant's remaining contentions and find them to be without merit.
Mangano, P.J., O'Brien, Ritter and McGinity, JJ., concur.