Allstate Insurance v. Manfredi Motor Transit Co.

Order unanimously reversed on the law with costs, defendants’ motions for summary judgment denied and plaintiff’s cross motion for summary judgment granted. Memorandum: Plaintiff, Allstate Insurance Company (Allstate), entered into a settlement agreement with other insurance companies. As part of Allstate’s contribution to the settlement it agreed to waive the amount of its workers’ compensation lien. The record, however, does not support defendants’ contention that Allstate waived its right to pursue a loss-transfer claim to recover payments made in lieu of first-party benefits. Absent an express waiver, Allstate has the right to pursue its loss-transfer claim for $50,000 in lieu of first-party benefits (see, Insurance Law § 5105 [a]) and the proper forum to do so is arbitration (see, Insurance Law § 5105 [b]; Workers’ Compensation Law § 29 [1-a]; 11 NYCRR 65.10 [a] [1]; Doherty v Barco Auto Leasing Co., 144 AD2d 424, 426). (Appeal from order of Supreme Court, Erie County, Wolfgang, J. — summary judgment.) Present — Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.