Opinion
April 4, 1994
Appeal from the Supreme Court, Kings County (Huttner, J.).
Ordered that the order is reversed, on the law, with costs, the petition is granted, and arbitration of the respondent's claim for underinsured motorists benefits is permanently stayed.
Pursuant to the express terms of the subject insurance policy, the petitioner is entitled to reduce the amount payable under the supplemental uninsured motorists' coverage by all sums paid to the respondent for Workers' Compensation (see, Matter of Valente v Prudential Prop. Cas. Ins. Co., 77 N.Y.2d 894). Here, the petitioner contends that the respondent has received Workers' Compensation benefits exceeding the policy limits for supplemental uninsured motorists' coverage, a claim that he does not controvert. Under the circumstances, the petition to stay arbitration of the respondent's claim for additional underinsured motorists' benefits should have been granted (see, Matter of General Acc. Ins. Co. v Bailey, 178 A.D.2d 924, 925). We note that the respondent's reliance on Regulation 35-D (see, 11 NYCRR 60-2.0 et seq.) is misplaced. The regulation in question, applicable to policies issued or renewed on or after October 1, 1993, has no bearing on the subject policy which was issued on November 1, 1989, and which was in effect until November 1, 1990. Balletta, J.P., Ritter, Copertino and Goldstein, JJ., concur.