Opinion
August 16, 2001.
Order, Supreme Court, New York County (Carol Huff, J.), entered January 11, 2001, which denied plaintiff's motion for summary judgment in this action for a declaration that plaintiff is entitled to offset amounts received by defendant from his workers' compensation carrier, unanimously reversed, on the law, without costs, plaintiff's motion granted to the extent of issuing a declaration in plaintiff-appellant's favor, and the matter remanded for a hearing to calculate the value of the set-off.
Lisa M. Comeau, for plaintiff-appellant.
Christopher X. Maher, for defendant-respondent.
Before: Rosenberger, J.P., Tom, Mazzarelli, Wallach, Friedman, JJ.
Since the arbitration clauses of the subject insurance policies limit arbitration to controversies pertaining to issues of fault and damages, the question of whether plaintiff is entitled to offset any supplemental underinsured motorist benefits to which defendant may be entitled under its policies with Travelers by the amount of workers' compensation benefits paid, or to be paid, to defendant, is for the court to determine (Rosenbaum v. American Surety Co., 11 N.Y.2d 310; Government Employees Ins. Co. v. DePietto, 226 A.D.2d 723; Matter of Travelers Indem. Co. v. Levy, 195 A.D.2d 35).
Pursuant to the Court of Appeals' holding in Valente v. Prudential Prop. Cas. Ins. Co., ( 77 N.Y.2d 894) and plaintiff's contract with the insured, plaintiff is entitled to offset benefits paid under its policies with defendant by the amount of workers' compensation benefits received to date and those he receives in the future. We thus grant plaintiff's motion for a declaration in its favor, and remand for a hearing to determine the value of that offset.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.