In re the Arbitration between Steck & State Farm Insurance

—Order affirmed without costs. Memorandum: Petitioner was seriously injured in an automobile accident. The insurer of the other vehicle involved in the accident paid the full policy limit of $300,000 to settle petitioner’s personal injury claim. Thereafter, petitioner, whose personal liability policy with respondent had coverage limits of $100,000/300,000 and underinsurance limits of $100,000, sought underinsurance benefits from respondent. Respondent denied the claim, asserting that there was no underinsurance coverage because the coverage on the other vehicle exceeded petitioner’s coverage. Petitioner served a demand to arbitrate the underinsurance claim pursuant to the arbitration clause in his policy. Supreme Court properly granted respondent’s application to stay arbitration. We reject the contention of petitioner that the court erred in granting the stay of arbitration because the 20-day period in which to seek arbitration had expired (see, CPLR 7503 [c]). Where, as here, an insured’s policy limits do not exceed the policy limits of the other vehicle, there is no underinsurance coverage (see, Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951; Matter of Commercial Union Ins. Co. [Raymond], 172 AD2d 988, 989, lv denied 78 NY2d 858). In the absence of underinsurance coverage, an insurance carrier is not barred by its failure to move to stay arbitration within the required 20-day period (see, Matter of Colonial Penn Ins. Co. v Matthews, 169 AD2d 721, 722-723; see also, Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266; Matter of Liberty Mut. Ins. Co. v Panetta, 187 AD2d 719, 720; United States Fid. & Guar. Co. v Housey, 162 AD2d 523, 524; Matter of Maryland Cas. Co. v Hopkins, 142 AD2d 946, lv denied 73 NY2d 702). All concur except Fallon, J., who dissents and votes to reverse in the following Memorandum.