Leftwich v. Travelers Indemnity Co. , 718 N.Y.S.2d 300 ( 2000 )

Order, Supreme Court, New York County (Emily Goodman, J.), entered November 4, 1999, which denied petitioner insured’s application to compel respondent insurer to arbitrate his claim for supplementary underinsured motorist coverage (SUM coverage), and granted respondent’s cross motion to permanently stay arbitration, unanimously affirmed, without costs.

Arbitration was properly stayed in view of the express, unambiguous terms of petitioner’s automobile insurance policy that all amounts paid to him by persons jointly and severally liable for a covered injury, as well as amounts paid to him on account of any such injury under any workers’ compensation law, were to be offset against the $500,000 SUM coverage available to him under the policy (cf., S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853, 854-855). Since, in connection with the accident, petitioner has received in excess of $1.4 million from two tortfeasors and workers’ compensation benefits, his SUM coverage has been fully offset. The regulations interpreting Insurance Law § 3420 (f) (2) on which petitioner relies were promulgated after the effective date of his policy and the date of the accident, and therefore do not avail him (see, id., at 854, n). We have considered petitioner’s other arguments and find them unpreserved and otherwise unavailing. Concur — Nardelli, J. P., Mazzarelli, Lerner, Buckley and Friedman, JJ.