Nationwide Mutual Insurance v. Damaskinos

—In a proceeding pursuant to CPLR article 75, the petitioner Nationwide Mutual Insurance Company appeals from a judgment of the Supreme Court, Nassau County (Winick, J.), entered December 28, 1995, which, upon a memorandum decision granting the respondent’s motion to confirm an arbitration award and denying its cross motion to vacate the award, inter alia, is in favor of the respondent and against it in the principal sum of $9,000. Ordered that the judgment is reversed, on the law, with costs, the motion to confirm the award is denied, the cross motion to vacate is granted, and the award is vacated. The insurance policy at issue contained a single combined limit of uninsured and underinsured motorist coverage of $10,000. The petitioner Nationwide Mutual Insurance Company was entitled to an offset for the $10,000 that the respondent recovered from the tortfeasor (see, 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 policy limit was exhausted, the award must be vacated (see, Matter of Deckaj v State Farm Mut. Ins. Co., 230 AD2d 735; Matter of Lotito v Metropolitan Prop. & Cas. Ins. Co., supra; see also, Matter of Zurich Ins. Co. v Wilburn, supra). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.