July 28, 2005

Von Maknassy v Mutual Serv. Cas. Ins. Co. (2005 NY Slip Op 06183)

Headnote

The court considered that defendant insurer had moved for summary judgment dismissing the complaint. The main issue was whether the record established, as a matter of law, that the plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations. The court held that the Supreme Court erred in granting the defendant insurer's motion for summary judgment dismissing the complaint. The record did not establish, as a matter of law, that plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations. The existing record also did not establish the defense of seeking a double recovery as a matter of law. Finally, the plaintiff was not precluded from asserting the claims at bar based on an assignment of benefits executed more than six years prior to the accident.

Reported in New York Official Reports at Von Maknassy v Mutual Serv. Cas. Ins. Co. (2005 NY Slip Op 06183)

Von Maknassy v Mutual Serv. Cas. Ins. Co.

2005 NY Slip Op 06183 [20 AD3d 375]

July 28, 2005

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 21, 2005

Harro B. Von Maknassy, Appellant,
v
Mutual Service Casualty Insurance Company, Respondent.

—[*1]

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 12, 2004, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In this action seeking recovery of no-fault benefits, Supreme Court erred in granting defendant insurer’s motion for summary judgment dismissing the complaint. The record does not establish, as a matter of law, that, under the circumstances, plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations. While defendant remains free to raise as a defense at trial its claim that plaintiff is seeking a double recovery, the existing record does not establish such a defense as a matter of law. Finally, plaintiff is not precluded from asserting the claims at bar, based on injuries he allegedly incurred in a 1999 accident, by an assignment of benefits he executed in 1993, more than six years prior to that accident. Concur—Mazzarelli, J.P., Andrias, Friedman, Gonzalez and Catterson, JJ.