Opinion
No. 2019-618 K C
12-11-2020
Flora Core, Appellant, v. State Farm Mutual Automobile Insurance Company, Respondent.
Richard S. Gershman & Associates, P.C. (Richard S. Gershman of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Sandra J. Leporin of counsel), for respondent.
Unpublished Opinion
Richard S. Gershman & Associates, P.C. (Richard S. Gershman of counsel), for appellant.
Nicolini, Paradise, Ferretti & Sabella, PLLC (Sandra J. Leporin of counsel), for respondent.
PRESENT:: MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 5, 2019. The order denied plaintiff's motion to dismiss defendant's second, third and fourth affirmative defenses.
ORDERED that the order is affirmed, without costs.
In an action to recover uninsured motorist benefits pursuant to a contract of insurance issued in Pennsylvania, plaintiff moved to dismiss the second, third and fourth affirmative defenses, "which, in effect, all alleged that [this] action is barred on the ground that... plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d)" (Scotland v Allstate Ins. Co.,35 A.D.3d 584, 584 [2006]). By order entered January 5, 2019, the Civil Court denied the motion on the ground that plaintiff did not "provide complete motion papers to the court."
The record provided to this court on appeal includes an original set of motion papers that are date-stamped as having been filed with the Civil Court on September 26, 2018. The motion appears to be "complete" and the Civil Court did not identify what was missing. In the interest of judicial economy, we review plaintiff's motion on the merits.
Plaintiff sued defendant under the uninsured motorist provision of the subject Pennsylvania policy, and plaintiff correctly argues that New York's serious injury threshold of Insurance Law § 3420 (f) (1) does not apply (see Scotland,35 A.D.3d 584). However, Pennsylvania law has its own serious injury requirement that applies in certain circumstances, and plaintiff has not demonstrated, as a matter of law, that such circumstances are not present in this case (see 75 Pa Stat Ann §§ 1731, 1705 [d]). As pleadings should be liberally construed (see Leon v Martinez, 84 N.Y.2d 83 [1994]), the subject affirmative defenses should be broadly construed to allege "that this action is barred because... plaintiff did not sustain a serious injury" (Scotland, 35 A.D.3d at 584). Thus, plaintiff's motion to dismiss the second, third and fourth affirmative defenses was properly denied, albeit on a ground other than that relied upon by the Civil Court.
Accordingly, the order is affirmed.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.