IN RE: AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY (2009)

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the appeal is from (1) an order of the Supreme Court, Dutchess County (Dolan, J.), dated July 17, 2008, which granted the petition to permanently stay the arbitration, and (2) a judgment of the same court entered July 28, 2008, which permanently stayed the arbitration.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the petitioner is awarded one bill of costs.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] [1];  Ilardi v. Inte-Fac Corp., 290 A.D.2d 490, 736 N.Y.S.2d 401).

In 2002, the appellant, a police officer, was seriously injured when a vehicle he stopped in the course of an investigation, operated by nonparty Lori Elmendorf, accelerated while he was partially inside the vehicle.   At a subsequent criminal proceeding, Elmendorf pleaded guilty to assault in the second degree, admitting that she intentionally drove even though the appellant was struggling with her and the steering wheel.

Since the appellant had an automobile insurance policy issued by the petitioner-insurer, he filed an uninsured motorist claim for the incident, which the insurer disclaimed.   The appellant thereafter demanded arbitration of the uninsured motorist claim from the insurer, who in turn commenced this proceeding for a permanent stay of that arbitration.   The Supreme Court granted a permanent stay of arbitration, finding that the incident emanated from intentional conduct and not negligence.   We affirm.

 Given that the appellant's injuries were not the result of an accident, he was not entitled to uninsured motorist benefits under the subject insurance policy (see State Farm Mut. Auto. Ins. Co. v. Langan, 55 A.D.3d 281, 283, 865 N.Y.S.2d 102;  Met Life Auto. & Home v. Kalendarev, 54 A.D.3d 830, 831, 865 N.Y.S.2d 108;  State Farm Mut. Auto. Ins. Co. v. Langan, 18 A.D.3d 860, 862, 796 N.Y.S.2d 663;  Matter of Allstate Ins. Co. v. Massre, 14 A.D.3d 610, 789 N.Y.S.2d 206;  Westchester Med. Ctr. v. Travelers Prop. Cas. Ins. Co., 309 A.D.2d 927, 765 N.Y.S.2d 901;  Matter of Progressive Northwestern Ins. Co. v. Van Dina, 282 A.D.2d 680, 724 N.Y.S.2d 431;  Matter of Aetna Cas. & Sur. Co. v. Perry, 220 A.D.2d 497, 632 N.Y.S.2d 31).   The appellant's arguments to the contrary lack merit (see Markevics v. Liberty Mut. Ins. Co., 97 N.Y.2d 646, 648-649, 735 N.Y.S.2d 865, 761 N.E.2d 557;  Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 200, 659 N.Y.S.2d 246, 681 N.E.2d 413;  Matter of Government Empls. Ins. Co. v. Spence, 23 A.D.3d 466, 467, 805 N.Y.S.2d 625).   Accordingly, the Supreme Court providently granted a permanent stay of arbitration.