SCOTLAND v. ALLSTATE INSURANCE COMPANY (2006)

In an action to recover uninsured motorist benefits pursuant to a contract of insurance, the plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court, Second and Eleventh Judicial Districts, dated November 4, 2005, which affirmed an order of the Civil Court of the City of New York, Queens County (Markey, J.), dated November 10, 2003, denying his motion to strike the first, second, and third affirmative defenses, which, in effect, all alleged that the plaintiff's action is barred on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order dated November 4, 2005, is reversed, on the law, with costs, the order of the Civil Court, entered November 18, 2003, is modified accordingly, the motion is granted, and the first, second, and third affirmative defenses are stricken.

The plaintiff sued his automobile insurer under the uninsured motorist provision of the subject policy.   The policy was issued in Virginia while the plaintiff resided there.   Under the circumstances presented, the serious injury threshold of Insurance Law § 3420(f)(1) does not apply here, and the plaintiff's motion to strike the first, second, and third affirmative defenses, which, in effect, all alleged that this action is barred because the plaintiff did not sustain a serious injury, should have been granted (cf. Montgomery v. Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444).