Allstate Ins. Co. v Dinizulu

[*1] Allstate Ins. Co. v Dinizulu 2012 NY Slip Op 51340(U) Decided on July 12, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-884 Q C.

Allstate Insurance Company as Subrogee of DHANRAJ SIEWDASS and JAINTREE SIEWDASS, Respondent,

against

Abena K. Dinizulu, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 10, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's motion seeking to compel plaintiff's subrogors to appear for physical examinations.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of defendant's motion seeking to compel plaintiff's subrogors to appear for physical examinations is granted, and the physical examinations shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this subrogation action to recover uninsured motorist benefits paid to plaintiff's subrogors following a 2006 accident involving defendant's vehicle, plaintiff alleged in its complaint that each of its subrogors had sustained a "serious injury" as a result of the accident. [*2]After plaintiff's subrogors failed to appear for physical examinations that had been scheduled by defendant, defendant moved to, among other things, compel plaintiff's subrogors to appear for physical examinations. Defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied that branch of defendant's motion.

While an insurer which has become subrogated to its insured's rights has the benefit of its insured's rights, it is also subject to any defenses that could be raised against its insured had the insured himself brought the action against the defendant (see 1-3 New Appleman New York Insurance Law § 3.05 [2d ed]). Plaintiff alleged in its complaint that each of its subrogors had sustained a "serious injury" within the meaning of Insurance Law § 5102 and plaintiff, in its appellate brief, admits that its subrogors had been compensated for their pain and suffering. As plaintiff's subrogors were not entitled to recover uninsured motorist benefits for non-economic loss in the absence of a serious injury (see Insurance Law § 3420 [f] [1]), defendant demonstrated that a physical examination of plaintiff's subrogors was "material and necessary" (CPLR 3101) to its defense that the subrogors did not sustain a serious injury within the meaning of Insurance Law § 5102.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's motion seeking to compel plaintiff's subrogors to appear for physical examinations is granted, as indicated above.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 12, 2012