Opinion
March 27, 1972
Order, Supreme Court, New York County entered on September 7, 1971, vacating a temporary stay of arbitration and directing that arbitration proceed "on the excess policy of the petitioner", unanimously reversed, on the law, without costs and without disbursements, the motion denied and arbitration permanently stayed. The carrier for the vehicle in which respondent, Marlene Cross, was a passenger (Securities Insurance Company of Hartford), is primarily liable under its uninsured motorist endorsement. Petitioner's liability is limited to excess coverage in accordance with the "Other Insurance" clause in its policy. That clause provides that it is applicable "only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance". Since the limit of liability under the uninsured motorist provisions of the policies issued by Securities and petitioner are the same, the "Other Insurance" clause, relied upon by respondents, does not afford excess coverage and petitioner is entitled to a stay of arbitration. ( Matter of Travelers Ins. Co. v. Case, 36 A.D.2d 833; Cohen v. Liberty Mut. Ins. Co., 35 A.D.2d 719.)
Concur — Stevens, P.J., McGivern, Nunez, Murphy and Capozzoli, JJ.