Matter of Progressive Ins. Co. v Dillon

Matter of Progressive Ins. Co. v Dillon 2009 NY Slip Op 08973 [68 AD3d 448] December 3, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Progressive Insurance Company, Respondent,
v
Melton Dillon et al., Appellants.

—[*1] Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellants.

Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for respondent.

Order, Supreme Court, New York County (James A. Yates, J.), entered November 26, 2008, which granted petitioner's motion to stay arbitration to the extent of directing an evidentiary hearing on the preliminary issue of insurance coverage, unanimously modified, on the law, to redefine the framed issue as "whether the insured's policy included underinsured motorist coverage," and otherwise affirmed, without costs.

The court correctly declined to address respondents' other arguments pending a determination of the issue of underinsured motorist coverage, since estoppel cannot be used to create coverage where none exists, regardless of whether the insurance company timely issued its disclaimer (Wausau Ins. Cos. v Feldman, 213 AD2d 179, 180 [1995]). We modify only to redefine the framed issue as indicated. We reject respondents' attempts to liken the court's previous orders to a judicial determination that coverage existed. There is no other basis in the current record for finding that coverage existed.

We have considered respondents' remaining contentions and find them unavailing. Concur—Saxe, J.P., Friedman, Acosta, Renwick and Abdus-Salaam, JJ.