TRANSPORTATION INSURANCE COMPANY PECORARO v. << (2000)

 Supreme Court erred in denying the application seeking a permanent stay of arbitration of respondent's underinsurance motorist claim.   Respondent settled his personal injury action against the tortfeasor and tendered a general release without petitioner's consent in violation of the express terms of the policy.   The “failure of [respondent] to obtain such prior consent from [petitioner] constitutes a breach of a condition of the insurance contract and disqualifies [respondent] from availing himself of the pertinent benefits of the policy” (Matter of State Farm Auto. Ins. Co. v. Blanco, 208 A.D.2d 933, 934, 617 N.Y.S.2d 898, lv. denied 85 N.Y.2d 802, 624 N.Y.S.2d 373, 648 N.E.2d 793;  see, Matter of State Farm Mut. Auto. Ins. Co. v. Hardina, 225 A.D.2d 486, 639 N.Y.S.2d 374).

 Respondent contends that he was authorized to act without petitioner's consent because petitioner failed to take any action within 30 days of respondent's letter dated July 8, 1996.   We reject respondent's contention that the letter satisfied the notice of settlement requirement of the policy.   Although the letter advised petitioner of respondent's intention to make an underinsurance claim, it did not “apprise petitioner of the pendency and settlement of the action” (Matter of Nationwide Mut. Ins. Co. [Tarsia], 265 A.D.2d 936, 695 N.Y.S.2d 811, lv. denied 94 N.Y.2d 757, 704 N.Y.S.2d 532, 725 N.E.2d 1094).   We also reject respondent's contention that subsequent oral communications constituted proper notice under the policy (see, Elkowitz v. Farm Family Mut. Ins. Co., 180 A.D.2d 711; 70A N.Y. Jur 2d, Insurance, § 1872).   In addition, petitioner did not waive the written notice requirement by words or conduct indicating that oral notice would suffice (see, Collins v. Isaksen, 221 A.D.2d 403, 633 N.Y.S.2d 539), nor did petitioner repudiate coverage as in Matter of State Farm Mut. Auto. Ins. Co. (Callisto), 255 A.D.2d 876, 680 N.Y.S.2d 39.

Order unanimously reversed on the law without costs and application granted.

MEMORANDUM: