92 A.D.2d 1049 | N.Y. App. Div. | 1983
—• Appeal from an order of the Supreme Court at Special Term (Pennock, J.), entered March 9,1982 in Albany County, which denied defendant’s motion for leave to serve a proposed amended answer and denied plaintiffs’ cross motion to strike defendant’s affirmative defense and grant summary judgment to plaintiffs. On December 30, 1977, Donald Maxwell was operating an automobile on the Albany-Shaker Road in the Town of Colonie when the vehicle left the highway. As a result of the accident Donald was rendered unconscious and remained in a comatose or semicomatose condition until his death on January 10, 1981. The automobile which he was driving was insured in the name of Donald’s wife, Patricia, by a policy issued by defendant State Farm Mutual Automobile Insurance Company which contained the mandatory personal injury protection indorsement required by article 18 of the Insurance Law. Defendant was provided with notice of the accident by plaintiffs on January 3, 1978 and soon thereafter forwarded the appropriate no-fault benefits application forms to the Maxwells. However, on January 18, 1978, upon learning from the police accident report that Mr. Maxwell had been cited for violating subdivision 3 of section 1192 of the Vehicle and Traffic Law, defendant informed Mrs. Maxwell that she would have to provide defendant with the blood alcohol test results from the blood withdrawn from Mr. Maxwell after the accident. On or about February 1,1978, Mrs. Maxwell’s retained attorney advised defendant that he sought recovery of no-fault benefits for his client, and that neither he nor Mrs. Maxwell had any knowledge of tests having been taken. An extensive exchange of correspondence followed wherein defendant demanded the release of the results of the blood test and plaintiffs sought the payment of the policy benefits or alternately a formal response of denial thereof, and when these procedures proved fruitless, the Maxwells, on July 13, 1978, commenced the instant action by service of a summons and complaint. Defendant promptly answered alleging as an affirmative defense the failure to co-operate as required by the terms of the policy. There was no further activity of consequence until sometime in March of 1981 when defendant successfully moved for an order directing plaintiff Mrs. Maxwell to reveal the blood test results which demonstrated Mr. Maxwell’s blood alcohol content to have been .21%. Thereafter, defendant