IN RE: NEW YORK SCHOOLS INSURANCE RECIPROCAL

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

IN RE: NEW YORK SCHOOLS INSURANCE RECIPROCAL, PETITIONER-APPELLANT, v. PATRICIA ARMITAGE, RESPONDENT-RESPONDENT. ALEX CELNIKER, ROMAN A. CELNIKER AND LIBERTY MUTUAL INSURANCE COMPANY, PROPOSED ADDITIONAL RESPONDENTS-RESPONDENTS.

CA 10-02172

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. BAXTER SMITH & SHAPIRO, P.C., WEST SENECA (LAUREN E. DILLON OF COUNSEL), FOR PETITIONER-APPELLANT. LOUDEN LAW FIRM, P.C., MALTA (MICHELLE MURPHY-LOUDEN OF COUNSEL), FOR RESPONDENT-RESPONDENT PATRICIA ARMITAGE.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Petitioner appeals from an order denying its petition seeking a permanent stay of arbitration.   Respondent sought arbitration following petitioner's denial of her claim for no-fault insurance benefits.   The propriety of the denial of benefits is a “dispute involving the insurer's liability to pay first party benefits” (Insurance Law § 5106[b] ), and we therefore conclude that Supreme Court properly refused to grant a permanent stay of arbitration (see generally Ryder Truck Lines v Maiorano, 44 N.Y.2d 364, 368-369).   Petitioner further contends that the issue whether the offset for workers' compensation benefits exceeds the monthly limit of first party benefits is not a matter for arbitration.   We reject that contention (see § 5102[a][2];  see generally § 5106[b];  Matter of Johnson v Buffalo & Erie County Private Indus.   Council, 84 N.Y.2d 13, 18-19;  Matter of Cady [Aetna Life & Cas. Co.], 96 A.D.2d 967, affd 61 N.Y.2d 594).   Finally, we reject petitioner's contention that, by refusing to grant a permanent stay of arbitration, the court denied petitioner its right to seek a loss-transfer claim from additional proposed respondents (see generally Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 A.D.2d 40, 42-43).

Patricia L. Morgan

Clerk of the Court