Opinion
November 15, 1995
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Green, J.P., Lawton, Callahan, Balio and Boehm, JJ.
Order unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in dismissing the petition for a stay of arbitration. Because respondent received insurance proceeds of $10,000 from the insurer of the tortfeasor's vehicle, that vehicle was not uninsured and the uninsured motorists coverage provided by petitioner did not apply (see, Insurance Law § 3420 [f] [1]; State-Wide Ins. Co. v Curry, 43 N.Y.2d 298, 302-303). Thus, respondent's demand for arbitration of the uninsured motorists claim should have been stayed. The record is devoid of proof that the policy insuring the vehicle driven by respondent provided supplementary uninsured motorists coverage, or underinsurance, and the demand for arbitration makes no claim for underinsurance coverage.