| Todaro v GEICO Gen. Ins. Co. |
| 2007 NY Slip Op 09863 [46 AD3d 1086] |
| December 13, 2007 |
| Appellate Division, Third Department |
| Teresa R. Todaro, Appellant-Respondent, v GEICO GeneralInsurance Company, Respondent-Appellant. |
—[*1] Law Office of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), forrespondent-appellant.
Cardona, P.J. Cross appeals from an order of the Supreme Court (Bradley, J.), enteredOctober 6, 2006 in Ulster County, which, among other things, vacated an inquest and denieddefendant's motion to dismiss the complaint.
Plaintiff was injured while driving a vehicle insured by defendant. After initially payingplaintiff no-fault insurance benefits, defendant terminated any additional payments citingplaintiff's failure to appear for independent medical examinations. Plaintiff then commenced thisaction to recover benefits allegedly owed to her.
Supreme Court granted plaintiff's subsequent motion for summary judgment and directedplaintiff to submit a proposed judgment. Defendant did not object to the judgment, which wasthen adopted by Supreme Court. Thereafter, defendant successfully moved to vacate thejudgment based upon plaintiff's improper service and filing thereof, and Supreme Court grantedits request for an inquest on the issue of damages.
At the inquest, defendant moved to dismiss the complaint. Supreme Court denied thatmotion, without prejudice, but vacated the inquest, determining that it was premature as the [*2]issues raised in the motion required further discovery. These crossappeals ensued, with defendant contending that its motion to dismiss should have been granted,and plaintiff arguing that Supreme Court should not have vacated the inquest.
Defendant argues four grounds in support of its motion to dismiss the complaint. First, itcontends that plaintiff's purported assignment of her right to receive benefits deprived her ofstanding to commence this action. As an objection to standing must be made by a preanswermotion to dismiss or asserted as a defense in the answer (see CPLR 3211 [e]; Matterof Prudco Realty Corp. v Palermo, 60 NY2d 656, 657 [1983]), defendant's motion on thisbasis is untimely. Next, defendant contends that plaintiff did not timely submit certain claims forno-fault benefits. However, an insurer must " 'stand or fall upon the defense upon which it basedits refusal to pay' " and cannot later create new defenses by requiring an insured's compliancewith the policy provisions (King v State Farm Mut. Auto Ins. Co., 218 AD2d 863, 865[1995], quoting Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190, 194[1957]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198-200[1997]). Having initially denied plaintiff's claims based on her failure to attend independentmedical examinations, defendant cannot now base a motion to dismiss on this new ground.
As the third ground for dismissal, defendant claims that because plaintiff has not sufferedout-of-pocket damages for which it would be obligated to pay, plaintiff has not stated a cause ofaction. However, no-fault benefits are intended to reimburse persons for, among other things,medical expenses "incurred" as a result of a motor vehicle accident (Insurance Law § 5102[a]). Plaintiff incurred such expenses at the time that she received treatment for her injuries(see e.g. Rubin v Empire Mut. Ins. Co., 25 NY2d 426 [1969]; see also 11 Couchon Insurance 3d § 158:12) and the fact that the bills may have already been paid by othersources, including her private health insurer, does not extinguish defendant's obligation. Finally,while defendant correctly contends that it is not precluded from challenging plaintiff's bills on thebasis of noncoverage (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2dat 199-202; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]; King vState Farm Mut. Auto. Ins. Co., 218 AD2d at 865), we find that defendant's motionsubmissions were not sufficient to establish its entitlement to dismissal on this basis.
In light of the foregoing, we conclude that Supreme Court properly denied defendant'smotion to dismiss. However, we discern no basis to vacate the inquest and order more discoveryon the above issues. Neither party requested additional discovery before Supreme Court or arguesfor it on appeal and, absent any clear need for further discovery, we conclude that "all proofnecessary to determine the appropriate damage award was before the court" (Domino Media vKranis, 215 AD2d 278 [1995]). Accordingly, the matter is remitted to Supreme Court tomake a determination of damages (see id.).
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as vacated the inquest and ordered additionaldiscovery; matter remitted to the Supreme Court for further proceedings not inconsistent withthis Court's decision; and, as so modified, affirmed.