Opinion
February 6, 1995
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the provision in the defendant's insurance policy providing underinsurance coverage of $11,000 is not "null and void" (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
The plaintiff Travis Morrison was injured in an automobile accident. The plaintiffs commenced an action against the alleged tortfeasor, and eventually settled the action without having obtained written consent from the defendant, the insurer of the automobile owned by the plaintiff Richard Morrison. The policy, however, required the defendant's written consent as a condition precedent to underinsurance coverage. In making such a settlement, the plaintiffs failed to preserve the defendant's right of subrogation against the alleged tortfeasor. Thus, the plaintiffs' failure to comply with the written consent provision prejudiced the defendant and precludes the plaintiffs from asserting an underinsured motorist claim (see, Weinberg v Transamerica Ins. Co., 62 N.Y.2d 379; Matter of State Farm Mut. Ins. Co. v. Donath, 164 A.D.2d 889; State Farm Mut. Auto. Ins. Co. v. Taglianetti, 122 A.D.2d 40). The plaintiffs' claim that the provision in the defendant's insurance policy providing underinsurance coverage of $11,000 is "null and void", contrary to public policy, and did not conform to Insurance Law § 3420 (f) (2), is without merit. Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.