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In the Matter of New York Schools Insurance Reciprocal v. Patricia Armitage

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 25, 2011

IN THE MATTER OF NEW YORK SCHOOLS INSURANCE RECIPROCAL,
PETITIONER-APPELLANT,
v.
PATRICIA ARMITAGE, RESPONDENT-RESPONDENT. ALEX CELNIKER, ROMAN A. CELNIKER AND LIBERTY MUTUAL INSURANCE COMPANY, PROPOSED ADDITIONAL RESPONDENTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered February 10, 2010.

Matter of New York Schools Ins. Reciprocal v Armitage

Appellate Division, Fourth Department

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.

Decided on March 25, 2011

PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.

The order denied the petition for a stay of arbitration.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:

Petitioner appeals from an order denying its petition seeking a permanent stay of arbitration. Respondent sought arbitration following petitioner's denial of her claim for no-fault insurance benefits. The propriety of the denial of benefits is a "dispute involving the insurer's liability to pay first party benefits" (Insurance Law § 5106 [b]), and we therefore conclude that Supreme Court properly refused to grant a permanent stay of arbitration (see generally Ryder Truck Lines v Maiorano, 44 NY2d 364, 368-369). Petitioner further contends that the issue whether the offset for workers' compensation benefits exceeds the monthly limit of first party benefits is not a matter for arbitration. We reject that contention (see § 5102 [a] [2]; see generally § 5106 [b]; Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18-19; Matter of Cady [Aetna Life & Cas. Co.], 96 AD2d 967, affd 61 NY2d 594). Finally, we reject petitioner's contention that, by refusing to grant a permanent stay of arbitration, the court denied petitioner its right to seek a loss-transfer claim from additional proposed respondents (see generally Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42-43).

Entered: March 25, 2011

Patricia L. Morgan Clerk of the Court

20110325

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