Shalem v. Teitelbaum

84 Misc. 2d 596, 381 N.Y.S.2d 165, 1975 N.Y. Misc. LEXIS 3184

Opinion

Anthony M. Livoti, J.

Motion by plaintiffs to strike affirmative defense and to order defendants to furnish plaintiffs with a photostatic copy of that portion of defendants’ liability policy which indicates the amount of liability coverage is granted. In this case, the insurer paid the infant plaintiff’s medical expense in an amount well in excess of $500 after plaintiff supplied the proof of the fact and amount of the loss she sustained.

Subdivision 2 of section 675 of the Insurance Law provides: "Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, the amount thereof or any matter which may arise under subdivision one of this section to binding arbitration”.

If the insurer disputed the fact that the loss occurred or the amount thereof, it should have provided the claimant with the option of submitting these issues to binding arbitration. By paying claimant’s medical expenses in excess of $500 and not exercising its right to offer the claimant the option to arbitrate, the insurer acknowledged and accepted the fact and the amount of the loss sustained and a defense which alleged that the plaintiff has failed to meet the threshold requirements as set forth in article XVIII of the Insurance Law will be stricken. (See Greenblatt v Johannssen, 80 Misc 2d 436.)

The defendants are directed to furnish plaintiffs’ attorney with a photostatic copy of that portion of defendants’ liability policy which indicates the amount of liability coverage within 15 days from the date of service upon defendants of a copy of the order with notice of entry.