67 A.D.2d 850 | N.Y. App. Div. | 1979
— Judgment, Supreme Court, New York County, entered February 24, 1978, granting petitioner’s motion for an order deeming the proof of claim filed July 28, 1975, with the Superintendent of Insurance as liquidator of the Professional Insurance Company of New York to be due and timely filed nunc pro tunc as of May 13, 1975, the last day for filing claims under a court order of liquidation pursuant to section 543 of the Insurance Law is unanimously reversed, on the law, without costs and without disbursements, and the petition dismissed. Petitioner is a physician who was insured for medical malpractice by Professional Insurance Company (hereinafter Professional). In April, 1974 Professional was adjudged insolvent, and the Superintendent of Insurance was appointed its liquidator. All insurance obligations were terminated on July 12, 1974. Notice was required to be given to the policyholders to present proofs of any claims on or before May 13, 1975. The Superintendent gave petitioner that notice on May 6, 1974, but petitioner denies its receipt. In May, 1975 petitioner learned of a potential malpractice claim against him with reference to a patient named Koellner. Through his insurance agent, he notified Professional of a possible lawsuit and filed a proof of claim which was received on July 30, 1975, and marked deferred. Otherwise, the Superintendent rejected the proof as an untimely request for policy protection, having been filed after the May 13, 1975, cut off date. Subsequently, the administratrix of Koellner’s estate sued petitioner for medical malpractice. Petitioner then commenced this special proceeding to have his July, 1975 proof of claim deemed timely nunc pro tunc as of May 13, 1975, and to require the Superintendent to undertake the policy obligations of defense and indemnification. Special Term granted the application in the interests of justice and elevated petitioner’s claim to the same status as all timely claims. Special Term thereby nullified the provisions in section 543 of the Insurance Law respecting the deadline for filing claims and its extension by court order only upon certification of necessity by the Superintendent. Supposedly because of the lack of prejudice in granting petitioner relief, the court admitted his claim to participation in the security fund established pursuant to section 334 of the Insurance Law. But that fund is available only for “allowed claims” (see Insurance Law, §§ 333, 334, subd 2); others,