Opinion
December 9, 1997
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
Respondents' notice of their intent to seek underinsured motorist benefits was not untimely, where they first became aware of the amount of other available coverage not long before they served the notice, in the course of presenting their personal injury actions. The uninsured portion of petitioner's policy does not specifically set forth any time limits for the giving of such notice, and petitioner had timely notice of the accident and was able to conduct an investigation (see, Lumbermens Mut. Cas. Co. v. Schrem, 227 A.D.2d 280). Nor is there merit to petitioner's claim that respondents' demand for arbitration did not adequately state the nature of the controversy. However, since the availability of underinsured benefits depends upon the exhaustion of "every last dollar" payable under any applicable bodily injury liability policy (Matter of Federal Ins. Co. v. Watnick, 80 N.Y.2d 539, 546), and since the issue of such exhaustion cannot be determined until respondents' personal injury actions have been resolved, we modify to temporarily stay the arbitration, and any disclosure therein, pending resolution of the personal injury actions, a result to which the respondents consent.
Concur — Milonas, J. P., Rosenberger, Nardelli and Mazzarelli, JJ.