Dinstber v Allstate Ins. Co.

Dinstber v Allstate Ins. Co. 2014 NY Slip Op 07391 Decided on October 30, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 30, 2014
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[*1]GEORGE C. DINSTBER III, Appellant,

v

ALLSTATE INSURANCE COMPANY, Respondent.

Calendar Date: September 10, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

George C. Dinstber III, Cincinnatus, appellant pro se.

Goldberg & Segalla, LLP, Buffalo (Paul D. McCormick of counsel), for respondent.

Lahtinen, J.P.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Rumsey, J.), entered October 31, 2012 in Cortland County, which, among other things, partially denied plaintiff's motion to dismiss defendant's affirmative defenses.

This matter has been before this Court on three separate appeals (110 AD3d 1410 [2013]; 96 AD3d 1198 [2012]; 75 AD3d 957 [2010]). As is relevant on this appeal, plaintiff moved for dismissal of all 16 affirmative defenses asserted in defendant's answer and for summary judgment. Supreme Court dismissed six of the affirmative defenses, but denied the motion with respect to the remaining affirmative defenses. Defendant withdrew the eighth affirmative defense and Supreme Court found the ninth and tenth affirmative defenses were properly asserted to the extent that they related to the claim for punitive damages. Inasmuch as this Court affirmed the dismissal of plaintiff's tort action seeking punitive damages (110 AD3d 1410 [2013]), those defenses are no longer at issue. Plaintiff's appeal, therefore, is from Supreme Court's denial of plaintiff's motion to dismiss the first, third, fourth, sixth, seventh, fourteenth and fifteenth affirmative defenses asserted in defendant's answer. As to those matters before us on this appeal, we agree with the reasons set forth by Supreme Court in its decision denying dismissal as to each of those affirmative defenses and, accordingly, affirm.

McCarthy, Rose, Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.