By Barros, J.P.; Connolly, Miller, Wooten, JJ.
EDWIN DAVIS, App, v. NEW YORK SCHOOLS INSURANCE RECIPROCAL, ET AL., Res — (Index No. 609665/19) Dell & Dean, PLLC, Garden City, NY (Joseph G. Dell And Mischel & Horn, P.C. [Scott T. Horn And Andrew J. Fisher], Of Counsel), For Appellant. Ahmuty, Demers & Mcmanus, Albertson, NY (Glenn A. Kaminska And Nicholas P. Calabria Of Counsel), For Respondents. In An Action To Recover Damages For Breach Of Contract And For A Judgment Declaring That The Defendants Are Obligated To Provide Supplementary Uninsured/underinsured motorists coverage under an insurance policy, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered July 2, 2021. The order granted the defendants’ motion for summary judgment dismissing the complaint and, in effect, declaring that the defendants are not obligated to provide supplementary uninsured/underinsured motorists coverage under an insurance policy. 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, inter alia, declaring that the defendants are not obligated to provide supplementary uninsured/underinsured motorists coverage under an insurance policy. The plaintiff sustained injuries in a collision between a school bus operated by him and a vehicle operated by Lorraine A. Walsh. The school bus was covered under an insurance policy issued by the defendant New York Schools Insurance Reciprocal (hereinafter NYSIR). The insurance policy included supplementary uninsured/underinsured motorists (hereinafter SUM) coverage with a $1 million limit. Exclusion 1 of the SUM endorsement provided that SUM coverage did not apply to an insured’s bodily injury if the insured or the insured’s legal representatives, “without our written consent, settles any lawsuit against any person or organization that may be legally liable for such injury.” Condition 10 of the SUM endorsement provided, in part, that if the insured “settles with any [negligent] party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after [30] calendar days actual written notice to us…. An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired.” With respect to subrogation, the SUM endorsement provided that if the insurer makes a SUM coverage payment, it has “the right to recover the amount of this payment from any person legally responsible for the bodily injury or loss of the person to whom, or for whose benefit, such payment was made.” Each of these provisions can be found in the prescribed SUM endorsement set forth in 11 NYCRR 60-2.3(f).
