In re the Arbitration Between Allstate Insurance & Brown

Nov 9, 2001
Versions:288 A.D.2d 955
732 N.Y.S.2d 612
2001 N.Y. App. Div. LEXIS 10734

—Order unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in denying the petition seeking a permanent stay of arbitration of respondent’s supplemental uninsured motorist claim. Respondent settled his personal injury action against the tortfeasor and tendered a general release without petitioner’s consent, thereby violating the express terms of the policy (see, Matter of Allstate Ins. Co. [Liberati], 280 AD2d 922). Respondent contends that the settlement did not prejudice petitioner’s subrogation rights because those rights were extinguished by the tortfeasor’s personal bankruptcy. Respondent failed to submit proof in admissible form estabhshing the bankruptcy discharge and thus failed to meet his burden of establishing the absence of prejudice to petitioner (see, Weinberg v Transamerica Ins. Co., 62 NY2d 379, 382-383). (Appeal from Order of Supreme Court, Erie County, Glownia, J. — Arbitration.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Lawton, JJ.