S'Dao v. National Grange Mutual Insurance
207 A.D.2d 977
| N.Y. App. Div. | 1994

—Order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: Plaintiff was injured in a two-car accident. She and four other injured persons reached a settlement with the two carriers insuring those vehicles. The bodily injury coverage of $50,000 per accident on one of the vehicles was exhausted, but the bodily injury coverage of $300,000 on the second vehicle was not. Because the bodily injury coverage on one of the two vehicles was not exhausted, plaintiff failed to satisfy the *978statutory condition precedent to the recovery of underinsurance benefits, and the complaint should have been dismissed (see, Insurance Law § 3420 [f] [2]; Matter of Federal Ins. Co. v Watnick, 80 NY2d 539, 546; Garcia v Mercado, 194 AD2d 334). (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J.—Summary Judgment.) Present—Denman, P. J., Green, Balio, Doerr and Boehm, JJ.