Appellate Division of the Supreme Court of New York, 1994

S'Dao v. National Grange Mutual Insurance

S'Dao v. National Grange Mutual Insurance
Appellate Division of the Supreme Court of New York · Decided September 30, 1994
207 A.D.2d 977; 616 N.Y.S.2d 836; 1994 N.Y. App. Div. LEXIS 10166
S'Dao v. National Grange Mutual Insurance

Opinion of the Court

—Order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: Plaintiff was injured in a two-car accident. She and four other injured persons reached a settlement with the two carriers insuring those vehicles. The bodily injury coverage of $50,000 per accident on one of the vehicles was exhausted, but the bodily injury coverage of $300,000 on the second vehicle was not. Because the bodily injury coverage on one of the two vehicles was not exhausted, plaintiff failed to satisfy the *978statutory condition precedent to the recovery of underinsurance benefits, and the complaint should have been dismissed (see, Insurance Law § 3420 [f] [2]; Matter of Federal Ins. Co. v Watnick, 80 NY2d 539, 546; Garcia v Mercado, 194 AD2d 334). (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J.—Summary Judgment.) Present—Denman, P. J., Green, Balio, Doerr and Boehm, JJ.

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