Rabideau v. Aetna Casualty & Surety Co. , 388 N.Y.S.2d 719 ( 1976 )

Appeal from an order of the Supreme Court at Special Term, entered February 24, 1976 in Franklin County, which granted summary judgment in favor of defendant on the ground that respondent was entitled to refuse to pay plaintiff any uninsured motorist benefits unless they were first offset by any first party benefits (no-fault insurance) previously received by her. The First Department has held in Matter of Adams (Government Employees Ins. Co.) (52 AD2d 118) that the insurer is not entitled to the offset here afforded it. We concur with this position and the rationale of the Adams decision. Plaintiff is entitled to an award under the uninsured motorists clause for pain and suffering, and any other items of loss not compensated for by no-fault coverage, "the award not to exceed in toto $10,000.” Only in the event that that award duplicates benefits provided by defendant under the no-fault provision in the subject policy is defendant entitled to reduce the uninsured motorists’ award by the sum of no-fault benefits. Accordingly, the order granting summary judgment to defendant should be reversed and summary judgment should be granted plaintiff to the extent heretofore indicated. Order reversed, on the law, and plaintiff’s motion for summary judgment granted, with costs. Mahoney, J. P., Main, Larkin, Herlihy and Reynolds, JJ., concur.