RUSSELL v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY

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

Kevin RUSSELL, appellant, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, respondent.

Decided: October 25, 2004

FRED T. SANTUCCI, J.P., THOMAS A. ADAMS, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Gary E. Rosenberg, P.C., Forest Hills, N.Y., for appellant. Jacobson & Schwartz, Rockville Centre, N.Y. (Eric P. Tosca of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Dye, J.), dated October 31, 2003, as denied his motion for summary judgment on the first cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiff's contention, the Supreme Court correctly concluded that the defendant, the plaintiff's supplementary uninsured motorist (hereinafter SUM) insurer, is not collaterally estopped from contesting his right to recover SUM benefits because it failed to intervene in the underlying personal injury action.

 An insurer's duty to pay SUM benefits does not arise until the insured demonstrates that the limits of his or her bodily injury coverage exceeds the same coverage in the tortfeasor's policy and the limits of all available bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements (see Insurance Law § 3420[f][2];  Matter of Metropolitan Prop. & Cas. Ins. Co. v. Mancuso, 93 N.Y.2d 487, 493, 693 N.Y.S.2d 81, 715 N.E.2d 107;  Rodriguez v. Metropolitan Prop. & Cas. Ins. Co., 7 A.D.3d 775, 776 N.Y.S.2d 868).   Moreover, the doctrine of collateral estoppel applies only to those who, unlike the defendant, were either a party, or in privity with a party, to the original action or proceeding (see Buechel v. Bain, 97 N.Y.2d 295, 303, 740 N.Y.S.2d 252, 766 N.E.2d 914, cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051;  D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634;  Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487).

 In this case, the plaintiff's endorsement provided for more than the minimum amount of uninsured motorist coverage mandated by Insurance Law § 3420(f)(1), and the plaintiff did not exercise his option to arbitrate the dispute (see 11 NYCRR 60-2.3[f] ).  Therefore, it may be resolved through an action at law instead of arbitration (see Cacciatore v. New York Cent. Mut. Fire Ins. Co., 301 A.D.2d 253, 750 N.Y.S.2d 712;  cf. Mahmood v. Fidelity & Guar. Ins. Co., 303 A.D.2d 385, 755 N.Y.S.2d 667).   However, the amount of SUM benefits to which the plaintiff is entitled, if any, remains to be determined (see Insurance Law § 3420[f][1];  Matter of Gravenese v. Allstate Ins. Co., 245 A.D.2d 507, 666 N.Y.S.2d 710).

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