| Kruger v State Farm Mut. Auto. Ins. Co. |
| 2010 NY Slip Op 09456 [79 AD3d 1519] |
| December 23, 2010 |
| Appellate Division, Third Department |
| Louise Kruger, Appellant, v State Farm Mutual Automobile InsuranceCompany, Sued Herein as State Farm Insurance Company, Respondent. |
—[*1] Goldberg Segalla, L.L.P., Albany (Matthew S. Lerner of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered June 29, 2010 inUlster County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff was injured while driving a vehicle insured by defendant. Defendant initially paid no-faultinsurance benefits for her chiropractic treatment, but ceased doing so after an independent medicalexamination found no further treatment to be necessary. Plaintiff nevertheless received further treatmentand commenced this action to recover benefits in 2005. After joinder of issue and discovery, defendantmoved for dismissal of the complaint, asserting for the first time that plaintiff had assigned her right topayment for no-fault benefits to her chiropractor and did not have standing to bring the present action.Supreme Court agreed that plaintiff lacked the capacity to sue and dismissed the complaint, and plaintiffappeals.
Defendant asserted that plaintiff lacked standing to maintain this action but, as that defense was notraised in a pre-answer motion to dismiss or in defendant's answer, it was waived and cannot [*2]now be advanced (see CPLR 3211 [a] [3]; [e]; McHale v Anthony, 70 AD3d 466,467 [2010]; Todaro v GEICO Gen. Ins.Co., 46 AD3d 1086, 1087 [2007]). Contrary to defendant's contention, the standing issuedoes not implicate the jurisdiction of Supreme Court such as to render it nonwaivable. Supreme Courtis empowered to determine whether defendant is liable to pay no-fault benefits (see Marangiello vKamak, 64 AD2d 624, 625 [1978]), and whether plaintiff is a proper person to pursue that claim"is an issue separate from the subject matter of the action or proceeding, and does not affect the court'spower to entertain the case before it" (WellsFargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 [2007]; see Matter of Renee XX. v John ZZ., 51AD3d 1090, 1092-1093 [2008]). Accordingly, defendant waived its right to assert lack ofstanding as an affirmative defense.
Peters, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion denied.