Berger v. Public Service Mutual Insurance

Order, Supreme Court, New York County (William J. Davis, J.), entered on or about June 18, 1990, which, inter alia, granted defendant’s motion for summary judgment and denied plaintiffs’ cross-motion for summary judgment, unanimously affirmed, without costs.

The executors were properly denied recovery under the clear terms of defendant’s supplemental insurance policy since the underinsurance clause unambiguously provides that decedent’s primary underinsurance coverage would be deducted from the maximum $35,000 amount he could recover under defendant’s policy (Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894). Furthermore, defendant was not required to give notice of disclaimer since the mandatory offset provision does not relate to an exclusion or condition in the policy (Zappone v Home Ins. Co., 55 NY2d 131). Concur— Ellerin, J. P., Wallach, Kupferman and Ross, JJ.