Federal Insurance v. Hansen

Order of the Supreme Court, Westchester County (Lucille Polk Buell, J.), entered September 8, 1988, which, upon reargument, adhered to a prior determination granting the defendant’s motion for summary judgment dismissing the complaint on the ground that Insurance Law § 5105 (b) required the arbitration of plaintiffs claim, unanimously modified, on the law, to the extent of denying defendant’s motion for summary judgment and reinstating the complaint, and otherwise affirmed, with costs. As should have been clear from the complaint, plaintiff subrogee seeks to recover amounts paid by it to its insured under the additional personal injury protection indorsement of the insured’s policy. Accordingly, the claim is not barred by Insurance Law § 5105 (b). Insurance Law § 5105 (b) requires arbitration of claims between insurers for first-party benefits. It has no application where, as here, the claim is for amounts paid by the insurer for additional personal injury protection, i.e., amounts in excess of first-party benefits (see, Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37; Fowler v Pebble Hill Bldg. Corp., 120 AD2d 486; State Farm Mut. Auto. Ins. Co. v La Forte, 125 AD2d 563). Concur—Murphy, P. J., Rosenberger, Asch, Smith and Rubin, JJ.