Opinion
March 18, 1985
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Judgment modified, on the law, by deleting the provision dismissing the complaint and substituting therefor a provision declaring that "upon the circumstances presented here, no-fault benefits are not stackable." As so modified, judgment affirmed.
Defendant is awarded one bill of costs.
Pursuant to Insurance Law § 5102 (a), "`Basic economic loss'" encompasses various losses "up to fifty thousand dollars per person". Thus, while "stacking" of policies is generally permitted in the area of liability insurance ( see, Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d 651), the no-fault act does not permit the duplication of payments for basic economic loss over and above the $50,000 ceiling (12A Couch, Insurance § 45, p 65). Although additional personal injury protection may be purchased ( see, 11 NYCRR 65.13; Record v Royal Globe Ins. Co., 83 A.D.2d 154), that is not at issue here.
Inasmuch as plaintiff has already obtained the maximum recovery for basic economic loss from her own automobile insurer by holding herself out as a pedestrian struck by a hit-and-run vehicle ( see, 11 NYCRR 65.12 [c]), she cannot duplicate her recovery by now holding herself out as a passenger in the vehicle of defendant's insured. The judgment must be modified, however, because the proper procedural disposition of a declaratory judgment action is to make an appropriate declaration rather than to dismiss the complaint ( Holliswood Care Center v. Whalen, 58 N.Y.2d 1001, 1004). Mollen, P.J., Titone, Lazer and Rubin, JJ., concur.