Upon the foregoing papers, the cross motion by plaintiff Nicholas Raffellini for an order, pursuant to CPLR 3211 (b), striking the fifth affirmative defense of defendant State Farm Mutual Automobile Insurance Company is granted.

On April 15, 1998, plaintiff was allegedly injured when the vehicle which he was operating was struck by an automobile owned and operated by Roman Seleznev. Thereafter, he commenced a personal injury action against Seleznev. That action was subsequently settled when Seleznev's automobile liability insurance carrier offered $25,000, the policy limit. Because plaintiff's damages allegedly exceeded $25,000, he commenced this action seeking supplementary underinsured motorist (SUM) benefits under the policy issued by State Farm, his liability insurance carrier. [*2]

In its fifth affirmative defense, State Farm asserted that the instant action is barred because plaintiff did not sustain a "serious injury" as that term is defined in Insurance Law § 5102 (d).

In his cross motion, plaintiff contends that the "serious injury" requirement does not apply because "this is not an action by a covered person against a covered person." Plaintiff points out that, in this case, "there was insurance in place on behalf of the tortfeaser and the serious injury threshold has been dealt with in that case."

In opposition to the cross motion, State Farm points out that New York Insurance Department Regulation 11 NYCRR 60-2.3 (f) sets forth the mandatory requirements for SUM endorsements in New York, including a provision that SUM coverage does not apply unless the insured has sustained a "serious injury." According to State Farm, the subject policy contains such a provision.

In reply, plaintiff notes that the actual policy endorsement referred to by State Farm is not annexed to its opposition papers. Moreover, plaintiff refers to Insurance Law § 3420 (a) which provides, in part, that a "serious injury" is not necessary to obtain SUM benefits and that all liability policies in New York are required to contain provisions which are "equally or more favorable to the insured;" in this case, more favorable than the policy endorsement relied upon by State Farm.

SUM coverage is available when the monetary limit of the insured's bodily injury liability coverage is, as here, greater than the same coverage of the tortfeasor. In that case, the injured party's policy supplements the damages which he or she may recover up to the limits of the SUM coverage once the tortfeasor's coverage is exhausted.

Insurance Law § 5104 provides, in part, that the right to recover for non-economic loss is conditioned upon plaintiff having sustained a "serious injury" in any action by or on behalf of a "covered person" against another "covered person" for personal injuries. While plaintiff in this case is a covered person, State Farm is not. Further, while "serious injury" is a necessary predicate to a claim for "uninsured motorist coverage" (Insurance Law § 3420 [f] [1]), the language contained in Insurance Law § 3420 (f) (2), which relates to "supplementary underinsured motorist coverage", contains no provision which conditions recovery upon a "serious injury." To the extent that State Farm asserts that its policy contains an endorsement which requires plaintiff to have sustained a "serious injury" as a condition of SUM coverage, the court finds that the underlying action brought by plaintiff against the tortfeasor (Roman Seleznev) would not have been settled for the policy limits if not for the existence of a "serious injury." The court further notes that State Farm apparently consented to the settlement. Accordingly, the cross motion by plaintiff is granted.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. [*3]