VON MAKNASSY v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY

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Supreme Court, Appellate Division, First Department, New York.

Harro B. VON MAKNASSY, Plaintiff-Appellant, v. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Defendant-Respondent.

Decided: July 28, 2005

MAZZARELLI, J.P., ANDRIAS, FRIEDMAN, GONZALEZ, CATTERSON, JJ. Louis A. Mangone, New York, for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Debra A. Adler of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 12, 2004, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

 In this action seeking recovery of no-fault benefits, Supreme Court erred in granting defendant insurer's motion for summary judgment dismissing the complaint.   The record does not establish, as a matter of law, that, under the circumstances, plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations.   While defendant remains free to raise as a defense at trial its claim that plaintiff is seeking a double recovery, the existing record does not establish such a defense as a matter of law.   Finally, plaintiff is not precluded from asserting the claims at bar, based on injuries he allegedly incurred in a 1999 accident, by an assignment of benefits he executed in 1993, more than six years prior to that accident.