Matter of State-Wide Ins. Co. v Luna

Matter of State-Wide Ins. Co. v Luna 2009 NY Slip Op 09237 [68 AD3d 882] December 8, 2009 Appellate Division, Second 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 State-Wide Insurance Company, Appellant,
v
Chenana Luna et al., Respondents, and State Farm Fire & Casualty Company, Respondent.

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

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for respondent-respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of claims for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Marano, J.H.O.), dated July 25, 2008, which, after a hearing, denied the petition and directed the parties to proceed to arbitration.

Ordered that the order is affirmed, with costs.

Contrary to the petitioner's contention, State Farm Fire & Casualty Company established that it properly disclaimed coverage under its insured's insurance policy on the ground of noncooperation by demonstrating that it acted diligently in seeking to bring about its insured's cooperation, that its efforts were reasonably calculated to obtain its insured's cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of "willful and avowed obstruction" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967]; see State Farm Fire & Cas. Co. v Imeri, 182 AD2d 683, 683-684 [1992]). Accordingly, the Supreme Court properly denied the petition and directed the parties to proceed to arbitration (see Matter of Allstate Ins. Co. v Guillaume, 23 AD3d 379, 380 [2005]).

The petitioner's remaining contentions are without merit. Prudenti, P.J., Skelos, Covello and Austin, JJ., concur.