FRIEDMAN v. ALLSTATE INSURANCE COMPANY

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

Joseph L. FRIEDMAN, et al., appellants, v. ALLSTATE INSURANCE COMPANY, respondent.

Decided: January 31, 2000

GUY JAMES MANGANO, P.J., WILLIAM C. THOMPSON, MYRIAM J. ALTMAN and DANIEL F. LUCIANO, JJ. Shafter & Shafter, Garden City, N.Y. (Allan D. Shafter of counsel), for appellants. Bruno, Gerbino & Macchia, LLP, Melville, N.Y. (Steven D. Brower of counsel), for respondent.

In an action to recover underinsured motorist benefits pursuant to an automobile insurance policy, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated January 8, 1999, which granted the defendant's motion pursuant to CPLR 3211(a) (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

It is undisputed that the plaintiffs failed to obtain the written consent of their insurance carrier, the defendant, Allstate Insurance Company (hereinafter Allstate), before settling the underlying negligence action with the tortfeasor, and that such consent was required by the underinsurance motorist coverage provisions of the Allstate policy.   Furthermore, in executing a release in favor of the tortfeasor, the plaintiffs failed to preserve Allstate's subrogation rights.   Under the circumstances, the plaintiffs are precluded from asserting a claim for benefits under the underinsurance motorist provisions of the policy (see, Aetna Cas. & Sur. Co. v. Longo Production, 247 A.D.2d 497, 669 N.Y.S.2d 336;  Matter of State Farm Fire & Cas. Co. v. Zyburo, 215 A.D.2d 566, 626 N.Y.S.2d 847).

The plaintiffs' remaining contentions are either unpreserved for appellate review or have been rendered academic in light of our determination.

MEMORANDUM BY THE COURT.

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