Liberty Mutual Fire Insurance v. Rondina

Sep 22, 2006
Versions:32 A.D.3d 1230
821 N.Y.S.2d 325

In the Matter of LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent, v THOMAS RONDINA et al., Individually and as Parents and Natural Guardians of T.J.R., Appellants. [821 NYS2d 325]—

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered May 5, 2005. The order granted the application for a permanent stay of arbitration. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondents served their automobile insurer, petitioner, with a demand for arbitration after petitioner refused to provide uninsured motorist coverage for injuries sustained by respondents’ son while he was a passenger on an uninsured all-terrain vehicle (ATV). Contrary to respondents’ contention, Supreme Court properly granted petitioner‘s application pursuant to CPLR 7503 (c) for a permanent stay of arbitration on the ground that respondents’ claim is not within the scope of petitioner‘s uninsured motorist coverage. “As a matter of law, [uninsured motorist] coverage extends to all motor vehicles as defined by Vehicle and Traffic Law § 125” (Harper v Lumbermen‘s Mut. Cas. Co., 174 AD2d 1031, 1031 [1991], lv dismissed 78 NY2d 1110 [1991]; see Insurance Law § 5202 [a]; Matter of Askey [General Acc. Fire & Life Assur. Corp.], 30 AD2d 632 [1968], affd 24 NY2d 937 [1969]). Because ATVs are specifically excluded from the definition of motor vehicles set forth in Vehicle and Traffic Law § 125, the court properly concluded that the uninsured motorist endorsement in the policy issued by petitioner to respondents does not encompass the claim for the injuries sustained by respondents’ son (see Harper, 174 AD2d 1031 [1991]; cf. Matter of Nationwide Mut. Ins. Co. v Riccadulli, 183 AD2d 111). Present —Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Green, JJ.