IN RE: BERKLEY INSURANCE COMPANY. (2024)

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about June 26, 2023, which, insofar as appealed from, granted Berkley Insurance Company's petition brought pursuant to CPLR article 75 to stay a SUM arbitration to the extent of staying the matter pending the outcome of a limited issue hearing, unanimously affirmed, without costs.

Contrary to petitioner's contention, the order, having been brought on by notice, is appealable (CPLR 5701[a][2]).

The court properly compared the insured's per person coverage with the per incident coverage in the tortfeasor's bodily injury policy (Matter of Prudential Prop. & Cas. Co. v. Szeli, 83 N.Y.2d 681, 687–688, 613 N.Y.S.2d 113, 635 N.E.2d 282 [1994]).  Moreover, because it was not clear from the face of the policies whether the tortfeasor's $300,000 per incident policy, which also covered property damage, exceeded the insured's $250,000 per person coverage, the court properly ordered a limited issue hearing (id. at 688, 613 N.Y.S.2d 113, 635 N.E.2d 282).

Finally, the court properly declined to consider the insured's excess insurance in comparing coverage for purposes of determining the trigger for SUM coverage (Matter of State Farm Mut. Auto. Ins. Co. v. Roth, 206 A.D.2d 376, 376, 613 N.Y.S.2d 713 [2d Dept. 1994], lv denied 84 N.Y.2d 812, 622 N.Y.S.2d 915, 647 N.E.2d 121 [1995]).