This action arose out of a motor vehicle accident which occurred on August 26, 2003, wherein plaintiffs decedent, James E. Russo, 17 years of age, was the operator of a motor vehicle owned by his father, Plaintiff Eugene O. Russo, and insured by defendant Royal & Sun Alliance, under a standard automobile insurance policy issued in and under the Laws of the State of New York. Plaintiffs decedentexpired on September 9, 2003, after being hospitalized in a coma at Nassau University Medical Center, as a result of complications of blunt force head trauma with fractures of the skull and epidural hemorrhage.

Both sides moved for summary judgment.

This action is brought because defendant has refused and failed to pay any of the obligations it is responsible for under the insurance policy, nor has defendant properly denied responsibility for same, as is required pursuant to New York States no-fault regulations (see 11 NYCRR 65-3(c)(1)), and pursuant to New York State case law, the court stated.

Insurer Suspects Intoxication

The record supports the conclusion that the reason defendant has engaged in said conduct, asserting the file continues to be under investigation pending receipt of test results and reports, apparently believing intoxication to be an issue, although never stating such, without providing any of the individuals and/or entities they have failed to pay with any good faith basis for the delays. While defendant claims to be awaiting further authorizations, whether from plaintiffs, doctors, or the hospital, the record clearly demonstrates they received all the authorizations said parties are able to supply, and that defendant erroneously seeks an authorization for Suffolk County Police records that is totally unnecessary, as such records require no authorization. As an insurer in the State of New York, defendant is charged with knowing this, and therefore cannot use their own failure to properly investigate as an excuse for refusal tomeet its obligations.

In a situation where a no-fault insurer intends to rely on the exclusion defense of intoxication, said carrier must deny the claim, in writing, within 30 days. In the instant case, to date, it is undisputed that the insurer has failed to deny these claims in writing. They are, therefore, now precluded from doing so. (citing Presbyterian Hospital in the City of New York v. Maryland Casualty Co. [1997]; Presbyterian Hosp. in the City of New York v. Aetna Cas. & Surety Co. [2nd Dept 1996]; Bennett v. State Farm Ins. Co. [3rd Dept 1989] " failure to diligently investigate claim [i.e., intoxication defense] is violation of no-fault carriers duty to act expeditiously in such matters and is a separate basis for precluding denial of claim).

Plaintiffs counsel sets forth the financial obligations of defendant in this matter that said defendant has failed to pay or deny for approximately two and one-half years.

Defense Claims Criticized

While plaintiffs have clearly constructed a prima facie entitlement to judgment as a matter of law, defendant has not even come close. Aside from the lack of evidentiary proof in their response and cross-motion, as addressed herein above, there are numerous statements of facts and characterizations of documents in defendant's papers that are completely dispensed with by the careful and comprehensive rebuttal set forth by plaintiffs submissions, as well as numerous omissions of important dates and facts that plaintiffs papers fill in, to the detriment of defendant's defense and prosecution of the within motions.

In conclusion, while defendant brings forth a resounding lack of evidentiary proof, the final blow by plaintiffs is an affidavit by an individual who was with James E. Russo prior to the within motor vehicle accident, attesting to the fact that the decedent was not intoxicated prior to the collision.

Summary judgment was granted to plaintiff.

Comment: The Court of Appeals made it very clear in Presbyterian Hospital v. Maryland Casualty that a no-fault insurers denial based on intoxication is not extended beyond 30 days of receipt of a bill simply because evidence sought from a third party, such as police or a hospital, has not yet been received. The time to pay or deny may be extended only by timely verification requests sent directly to the provider.

Eugene Russo, as Administrator of the Estate of JAMES E. RUSSO, Deceased, and EUGENE O. RUSSO, individually v. Royal & Sun Alliance (2006 NY Slip Op 51596) (Supreme Court, Suffolk County) (Spinner, J.) (Index no. 2005-14550)