LUMBERMEN MUTUAL CASUALTY COMPANY v. DeMAIO (1999)

Supreme Court, Appellate Division, First Department, New York.

LUMBERMEN'S MUTUAL CASUALTY COMPANY, Plaintiff-Respondent, v. Vincent DeMAIO, Respondent-Appellant.

Decided: March 04, 1999

NARDELLI, J.P., LERNER, MAZZARELLI and SAXE, JJ.

Michael F. Harris, for Plaintiff-Respondent. Alan C. Glassman, for Respondent-Appellant.

Order, Supreme Court, New York County (Patricia Williams, J.), entered February 13, 1998, which granted respondent Vincent DeMaio's motion for renewal, but upon renewal adhered to its prior determination granting petitioner insurer's application to permanently stay arbitration, unanimously affirmed, without costs.

The motion court correctly concluded that the uninsured vehicle in question was not “in use” within the meaning of the uninsured motorist endorsement in the relevant policy (see, Lumbermen's Mut. Cas. Co. v. Logan, 88 A.D.2d 971, 451 N.Y.S.2d 804; Matter of Manhattan & Bronx Surface Tr. Operating Auth., 71 A.D.2d 1004, 1005, 420 N.Y.S.2d 298; McConnell v. Fireman's Fund Am. Ins. Co., 49 A.D.2d 676, 677, 370 N.Y.S.2d 730).

MEMORANDUM DECISION.

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