IN RE: GENERAL ACCIDENT INSURANCE COMPANY (1997)

In a proceeding to permanently stay arbitration of an underinsured motorist claim, the petitioner appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated September 23, 1996, which granted the motion of the respondent Stephen Lobritto for reargument and, upon reargument, denied the petition.

ORDERED that the order is affirmed, with costs.

Contrary to the contention of the petitioner insurance carrier General Accident Insurance Company (hereinafter General Accident), the policy at issue provides coverage for the event that caused the respondent Stephen Lobritto's injuries but for a policy “exclusion” (see, Planet Ins. Co. v. Bright Bay Classic Vehicles, Inc., 75 N.Y.2d 394, 554 N.Y.S.2d 84, 553 N.E.2d 562;  Zappone v. Home Ins. Co., 55 N.Y.2d 131, 447 N.Y.S.2d 911, 432 N.E.2d 783;  Matter of Unigard Ins. Group v. Bothwell, 237 A.D.2d 450, 655 N.Y.S.2d 77 ).   The nine-month delay by General Accident in denying the claim based on the policy exclusion precludes it from raising that exclusion as a defense to the claim, and, thus, the petition to permanently stay arbitration was properly denied on that ground (see, Zappone v. Home Ins. Co., supra;  Ward v. Corbally, Gartland & Rappleyea, 207 A.D.2d 342, 615 N.Y.S.2d 430;  Farmers Fire Ins. Co. v. Brighton, 142 A.D.2d 547, 530 N.Y.S.2d 215).

MEMORANDUM BY THE COURT.