24 A.D.3d 655
N.Y. App. Div.
2005

State Farm Mutual Automobile Insurance Co., as Subrogee of Randolph Walker, Appellant, v Kim F. Letus et al., Respondents.

Supreme Court, Appellate Division, Second Department, New York

[807 NYS2d 391]

Ritter, J.P., Rivera, Spolzino and Covello, JJ.

In a subrogation action to recover insurance benefits paid to the plaintiff‘s insured, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated January 13, 2005, which granted the defendants’ motion to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff, State Farm Automobile Insurance Co. (hereinafter State Farm), as subrogee of Randolph Walker, commenced this action to recover additional personal injury protection (hereinafter APIP) benefits allegedly paid to its insured for damages arising from a motor vehicle accident with the defendants. The defendants moved to dismiss the complaint, inter alia, on the ground that the action had been voluntarily discontinued by State Farm. The Supreme Court granted the motion. We reverse.

In support of their motion, the defendants failed to demonstrate that the purported “stipulation” discontinuing the action complied with CPLR 3217 (see e.g. C.W. Brown, Inc. v HCE, Inc., 8 AD3d 520 [2004]; Bove v Cherney, 252 AD2d 512 [1998]; Millicent Bender, Inc. v J. D. Posillico, Inc., 144 AD2d 548 [1988]).

In light of our determination, we need not reach State Farm‘s remaining contentions. Ritter, J.P., Rivera, Spolzino and Covello, JJ., concur.