IN RE: TIG INSURANCE COMPANY

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

IN RE: TIG INSURANCE COMPANY, respondent, v. Peter PELLEGRINI, appellant.

Decided: February 22, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. Malcolm Fein, Brooklyn, N.Y., for appellant. Vincent D. McNamara, Mineola, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an underinsured motorist claim, the appeal is from an order and judgment (one paper) of the Supreme Court, Nassau County (Feuerstein, J.), dated January 7, 1998, which granted the petition and stayed arbitration.

ORDERED that the order and judgment is reversed, on the law, with costs, the petition is denied, and the parties are directed to proceed to arbitration.

The Supreme Court granted the petition to permanently stay arbitration of Peter Pellegrini's underinsured motorist claim on the ground that he failed to obtain consent from the petitioner to settle with the tortfeasor's liability insurance carrier prior to settlement.   A review of the record reveals that the petitioner first raised this claim concerning consent in its reply papers.  “The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion” (Dannasch v. Bifulco, 184 A.D.2d 415, 417, 585 N.Y.S.2d 360).   Since the appellant did not have the opportunity to oppose that newly-raised claim in a surreply (cf., Basile v. Grand Union Co., 196 A.D.2d 836, 602 N.Y.S.2d 30), it was improper for the court to have granted the petition based upon it.

MEMORANDUM BY THE COURT.

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