JONES v. PEERLESS INSURANCE COMPANY (2001)

 Plaintiff commenced this action seeking a judgment declaring, inter alia, that he is entitled to pursue a claim for $50,000 under the supplemental uninsured motorist (SUM) provision of an automobile insurance policy issued by defendant.  “Under Insurance Law § 3420(f)(2), an insured's [SUM] coverage is triggered when the limit of the insured's bodily injury liability coverage is greater than the same coverage in the tortfeasor's policy” (Matter of Prudential Prop. & Cas. Co. v. Szeli, 83 N.Y.2d 681, 684, 613 N.Y.S.2d 113, 635 N.E.2d 282).   Plaintiff, the insured, had a single limit coverage of $100,000 for both bodily injury and property damage, and the tortfeasor had a split liability limit of $50,000 per person and $100,000 per accident for bodily injury.   Plaintiff, the only person injured in the accident, settled his personal injury liability claim with the tortfeasor for $50,000.   Plaintiff contends that SUM coverage was triggered because, in comparing the $100,000 single limit under his policy with the tortfeasor's $50,000 per person limit, his bodily injury coverage was greater than the tortfeasor's.   We agree.   We conclude, therefore, that Supreme Court erred in determining that the appropriate comparison is between plaintiff's $100,000 single limit and the tortfeasor's $100,000 per accident limit where, as here, only one person was injured in the accident (cf., Matter of Prudential Prop. & Cas. Co. v. Szeli, supra, at 687-688, 613 N.Y.S.2d 113, 635 N.E.2d 282;  Matter of Allstate Ins. Co. v. Hager, 199 A.D.2d 383, 384, 605 N.Y.S.2d 310, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415).   Thus, we deny defendant's cross motion, reinstate the complaint, grant plaintiff's motion and grant judgment in favor of plaintiff declaring that plaintiff is entitled to pursue the SUM claim against defendant.

Judgment unanimously reversed on the law without costs, cross motion denied, complaint reinstated, motion granted and judgment granted.

MEMORANDUM: