Nationwide Insurance v. Kuchta

—In a proceeding pursuant to CPLR article 75 for a permanent stay of arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Roberto, J.), dated March 22, 1996, which denied the petition and dismissed the proceeding. Ordered that the order is reversed, on the law, with costs, the petition is granted, and arbitration is permanently stayed. The policy at issue contains a single combined limit of uninsured and underinsured motorist coverage of $10,000. The petitioner was entitled to an offset of $10,000, which is the [511] amount that the respondent recovered from the tortfeasor (see, Matter of Deckaj v State Farm Mut. Ins. Co., 230 AD2d 735; Matter of Allstate Ins. Co. [Stolarz-N.J. Mfrs. Ins. Co.], 81 NY2d 219; Matter of Nationwide Ins. Co. v Ohrablo, 236 AD2d 541; Matter of Lotito v Metropolitan Prop. & Cas. Ins. Co., 228 AD2d 443; Matter of Nationwide Ins. Co. [Winn], 215 AD2d 958; Matter of Zurich Ins. Co. v Wilburn, 212 AD2d 620). Since the respondent has exhausted his policy limit, there is nothing to arbitrate (see, Matter of Lotito v Metropolitan Prop. & Cas. Ins. Co., supra). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.