Continental Casualty Co. v. Luhrs

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the appeal is from an order of the Supreme Court, Dutchess County (Beisner, J.), dated November 19, 2001, which granted the petition and stayed arbitration. Ordered that the order is affirmed, with costs. 358 Contrary to the appellant’s contention, the subject insurance policy did not provide underinsured motorist coverage for the underlying accident. Further, because the noncoverage arose from a lack of inclusion, not a policy exclusion, a timely disclaimer of coverage was not required (see Markevics v Liberty Mut. Ins. Co., 97 NY2d 646; Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; Handelsman v Sea Ins. Co., 85 NY2d 96; Zappone v Home Ins. Co., 55 NY2d 131; Sphere Drake Ins. Co. v Block 7206 Corp., 265 AD2d 78). Ritter, J.P., Altman, H. Miller and Cozier, JJ., concur.