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State-Wide Insurance Co. v. Luna

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 8, 2009

IN THE MATTER OF STATE-WIDE INSURANCE COMPANY, APPELLANT,
v.
CHENANA LUNA, ET AL., RESPONDENTS,
STATE FARM FIRE & CASUALTY COMPANY, RESPONDENT- RESPONDENT.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of claims for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Marano, J.H.O.), dated July 25, 2008, which, after a hearing, denied the petition and directed the parties to proceed to arbitration.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., PETER B. SKELOS, JOSEPH COVELLO and LEONARD B. AUSTIN, JJ.

(Index No. 1395/08)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Contrary to the petitioner's contention, State Farm Fire & Casualty Company established that it properly disclaimed coverage under its insured's insurance policy on the ground of non-cooperation by demonstrating that it acted diligently in seeking to bring about its insured's cooperation, that its efforts were reasonably calculated to obtain its insured's cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of "wilful and avowed obstruction" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168; see State Farm Fire & Cas. Co. v Imeri, 182 AD2d 683, 683-684). Accordingly, the Supreme Court properly denied the petition and directed the parties to proceed to arbitration (see Matter of Allstate Ins. Co. v Guillaume, 23 AD3d 379, 380).

The petitioner's remaining contentions are without merit.

PRUDENTI, P.J., SKELOS, COVELLO and AUSTIN, JJ., concur.

20091208

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