NEW YORK SCHOOLS INSURANCE RECIP, MTR. OF

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 253 CA 10-02172 PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.

IN THE MATTER OF NEW YORK SCHOOLS INSURANCE RECIPROCAL, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

PATRICIA ARMITAGE, RESPONDENT-RESPONDENT. --------------------------------------------- ALEX CELNIKER, ROMAN A. CELNIKER AND LIBERTY MUTUAL INSURANCE COMPANY, PROPOSED ADDITIONAL RESPONDENTS-RESPONDENTS.

BAXTER SMITH & SHAPIRO, P.C., WEST SENECA (LAUREN E. DILLON OF COUNSEL), FOR PETITIONER-APPELLANT.

LOUDEN LAW FIRM, P.C., MALTA (MICHELLE MURPHY-LOUDEN OF COUNSEL), FOR RESPONDENT-RESPONDENT PATRICIA ARMITAGE.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered February 10, 2010. The order denied the petition for a stay of arbitration.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order denying its petition seeking a permanent stay of arbitration. Respondent sought arbitration following petitioner’s denial of her claim for no-fault insurance benefits. The propriety of the denial of benefits is a “dispute involving the insurer’s liability to pay first party benefits” (Insurance Law § 5106 [b]), and we therefore conclude that Supreme Court properly refused to grant a permanent stay of arbitration (see generally Ryder Truck Lines v Maiorano, 44 NY2d 364, 368-369). Petitioner further contends that the issue whether the offset for workers’ compensation benefits exceeds the monthly limit of first party benefits is not a matter for arbitration. We reject that contention (see § 5102 [a] [2]; see generally § 5106 [b]; Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18-19; Matter of Cady [Aetna Life & Cas. Co.], 96 AD2d 967, affd 61 NY2d 594). Finally, we reject petitioner’s contention that, by refusing to grant a permanent stay of arbitration, the court denied petitioner its right to seek a loss-transfer claim from additional proposed respondents (see generally Matter of Liberty Mut. Ins. Co.

-2- 253 CA 10-02172

[Hanover Ins. Co.], 307 AD2d 40, 42-43).

Entered: March 25, 2011 Patricia L. Morgan Clerk of the Court