BERGER v. PUBLIC SERVICE MUTUAL INS. CO

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 N.Y.2d 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 N.Y.2d 131).

Concur — Ellerin, J.P., Wallach, Kupferman and Ross, JJ.