IN RE: PROGRESSIVE INSURANCE COMPANY (2009)

Order, Supreme Court, New York County (James A. Yates, J.), entered November 26, 2008, which granted petitioner's motion to stay arbitration to the extent of directing an evidentiary hearing on the preliminary issue of insurance coverage, unanimously modified, on the law, to redefine the framed issue as “whether the insured's policy included underinsured motorist coverage,” and otherwise affirmed, without costs.

The court correctly declined to address respondents' other arguments pending a determination of the issue of underinsured motorist coverage, since estoppel cannot be used to create coverage where none exists, regardless of whether the insurance company timely issued its disclaimer (Wausau Ins. Cos. v. Feldman, 213 A.D.2d 179, 180, 623 N.Y.S.2d 242 [1995] ).   We modify only to redefine the framed issue as indicated.   We reject respondents' attempts to liken the court's previous orders to a judicial determination that coverage existed.   There is no other basis in the current record for finding that coverage existed.

We have considered respondents' remaining contentions and find them unavailing.