Rieker v Encompass Ins. Co. (2008 NY Slip Op 50729(U))

Reported in New York Official Reports at Rieker v Encompass Ins. Co. (2008 NY Slip Op 50729(U))

Rieker v Encompass Ins. Co. (2008 NY Slip Op 50729(U)) [*1]
Rieker v Encompass Ins. Co.
2008 NY Slip Op 50729(U) [19 Misc 3d 1116(A)]
Decided on February 11, 2008
Kingston City Ct
Gilpatric, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 11, 2008

Kingston City Ct

Mark Rieker, Plaintiff


Encompass Insurance Company, Defendant




Attorneys for Plaintiff



Attorney for Defendant

James P. Gilpatric, J.

The defendant, Encompass Insurance Company, moved this Court for Summary Judgment, dismissing the above-captioned action brought in the civil part of this court by the plaintiff to compel payment by the defendant of the former’s no-fault insurance benefits pursuant to an insurance policy he had with the defendant company.

The facts underlying the motion are essentially uncontroverted. The plaintiff was involved in an automobile accident on April 30, 2005. Thereafter, the plaintiff made an appointment with his attorney to discuss the case and file a claim for so-called no-fault first party benefits, as well as any claim against any negligent party who may have caused the accident. The appointment between the plaintiff and his lawyer occurred on May 30, 2005, according to the papers submitted by the plaintiff’s lawyer, and a claim was filed with the defendant company on behalf of the plaintiff on June 1, 2005. (Exhibit C attached to defendant’s motion papers). Thereafter, the defendant denied the plaintiff’s claim by letter dated June 9, 2005 (Defendant’s Exhibit D attached to defendant’s motion papers). As a result of this denial, the plaintiff instituted this action and this motion for summary judgment to dismiss the same is now before this Court.

In 1973, the New York State Legislature enacted the Comprehensive Automobile Insurance Reparations Act, now known as the Comprehensive Motor Vehicle Insurance Reparations Act and which is now commonly referred to as the “No-Fault Law”. The “No-Fault Law” was enacted in derogation of the common law (Walton v. Lumbermens Mutual Casualty Co. 88 NY2d 211, 214 [1996]), for the primary purpose of assuring “that every auto accident victim will be compensated for substantially all of his economic loss promptly and without [*2]regard to fault”, ( Matter of Granger v. Urda, 44 NY2d 91, 98 [1978]). The Insurance Department has promulgated regulations under the statute in question to regulate the filing of claims and defendant relies on 11 NYCRR 65-1.1 in holding that the claim must have been filed within 30 days of the accident and not 32 days, as in the case at bar. The regulation in question permits a claim provided that the claimant give “clear and reasonable justification for failure to comply with such time limitations.” (11NYCRR 65.1-1).

In opposition to the motion, counsel for the plaintiff advises that his client did not come into his office until the 30th day after the accident and that the same could not be filed for another two days due to some backlog of work, although the same was filed within 48 hours after the meeting between counsel and his client. It should be noted that for many years, plaintiffs had 90 days to file such a claim and only in recent years was the time limit reduced to 30 days by regulation. In any event, the Court finds that in the circumstances presented at bar, the Court cannot find that such a claim and the excuse proffered for the brief delay in filing the same was not unreasonable as a matter of law and indeed to hold otherwise, would be contrary to the spirit of the No-Fault Law’s enabling legislation and intention to serve the public at a critical time in their life.

Moreover, the Court finds that the notice given by the defendant insurer as set forth in Exhibit D of the defendant’s motion papers, failed to fulfill its regulatory mandate that the claimant be notified of its right to justify an untimely submission with proper written justification as otherwise required in 11 NYCRR 65-3.3[e], especially since said regulation was meant to ameliorate the impact of the severely shortened time periods within which a claimant could file a claim (See, Radiology Today, PC, a/a/o Andre Radkevitch v. Citiwide Auto Leasing, Inc., d/b/a Dollar-Rent-A-Car, 15 Misc. 3rd 92, 94; and Westchester Medical Center a/a/o Christopher Andrews, et al, against Encompass Insurance Company and Allstate Insurance Company, 2007 NY Slip Op 52475U; 2007 NY Misc. Lexis 8522 [November 2, 2007]).

Accordingly, the defendant’s motion for summary judgment dismissing the action herein is denied in all respects without costs. This is the decision of this Court. Attorney for plaintiff shall submit Order on not less than five days notice of settlement.

ENTERED this day of, 2008, at Kingston, New York.


Hon. James P. Gilpatric

City Court Judge, City of Kingston