In re Arbitration between New York Central Mutual Fire Insurance & Smith

—Order unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in determining that an underinsurance offset provision of respondents’ insurance policy is unenforceable. That provision is enforceable because the policy provides a single, combined liability limit for both uninsurance and underinsurance (see, Matter of Allstate Ins. Co. [Stolarz— N. J. Mfrs. Ins. Co.], 81 NY2d 219, 223-224; cf., Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, affd without opn 119 AD2d 1017, affd 69 NY2d 777 for the reasons 959 stated at Special Term). Thus, respondents, who recovered $10,000 from the tortfeasor’s insurer, are entitled to no more than $15,000 in underinsurance coverage from petitioner, not the full $25,000 policy limit (see, Matter of Nationwide Mut. Ins. Co. [Hunley], 210 AD2d 947; see also, Matter of New York Cent. Mut. Fire Ins. Co. [McGill], 244 AD2d 865 [decided herewith]). (Appeal from Order of Supreme Court, Erie County, No-taro, J.—Arbitration.) Present—Denman, P. J., Hayes, Callahan and Fallon, JJ.