Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present: HONORABLE THOMAS V. POLIZZI      IA Part 14       Justice

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                                      x Index
NORTH AMERICAN INSURANCE COMPANY, etc.      Number 16655 1994

                                                                                   Motion
                                      - against -                      Date June 8, 1999

ROBERT TOBIAS, et al.                                    Motion
                                                                                     Cal. Number 13

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The following papers numbered 1 to 15 read on this motion by defendant Tobias and cross motion by defendant Lucero for leave to amend their answers to assert additional affirmative defenses and to dismiss the complaint as barred by the Statute of Limitations.

                                                           Papers
                                                                         Numbered

Notice of Motion - Affidavits - Exhibits ......... 1-4
Notice of Cross Motion - Affidavits - Exhibits ... 5-8
Answering Affidavits - Exhibits .................. 9-11
Reply Affidavits ................................. 12-15

Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows:

This action arises out of a one vehicle accident which occurred on October 12, 1991. The motor vehicle involved in the accident had been rented by defendant Tobias from plaintiff's insured, Delson Leasing Inc. Plaintiff had issued an insurance policy covering the subject vehicle. At the time of the accident, the vehicle was being operated by defendant Lucero. It is alleged that there were ten passengers in the vehicle in addition to the two defendants and that all of the occupants sustained injuries. While the basis of plaintiff's claims against defendants cannot be ascertained from the complaint, the papers now before the court reveal that plaintiff is seeking to recover from defendants, the alleged tortfeasors responsible for the accident, those amounts plaintiff paid to the injured occupants of the vehicle as first party benefits under the No-Fault Law (Insurance Law art 51) for medical expenses incurred. (Insurance Law '' 5102[a][1], [b]; 5103[a].)

Within the statutory scheme of the No-Fault Law, plaintiff has no right to recover first party benefits from defendants. First party benefits are payments to reimburse a covered person for basic economic loss. (Insurance Law ' 5102[b].) A covered person cannot recover for basic economic loss from another covered person. (Insurance Law ' 5104[a].) Nor can an insurance company maintain an action against a covered person alleged to be responsible for the accident to recover first party benefits paid to another covered person. (See, State-Wide Ins. Co. v Buffalo Ins. Co., 105 AD2d 315; Country-Wide Ins. Co. v 3-M Prod. Sales, 96 AD2d 569.) Rather, an insurer liable for the payment of first party benefits to a covered person may, in certain instances, recover the amount of such benefits paid "from the insurer of any other covered person to the extent that such other covered person would have been liable, but for the provisions of this article, to pay damages in an action at law." (Insurance Law ' 5105[a].) The sole remedy of an insurer seeking to recover on such a claim against another insurer is to submit the controversy to mandatory arbitration. (Insurance Law ' 5105[b]; see, Empire Ins. Co. v Metropolitan Suburban Bus Auth., 159 AD2d 312.) When the alleged wrongdoer in an automobile accident is a noncovered person, the insurer which paid first party benefits to an injured covered person is entitled to a lien, to the extent of benefits paid, against any recovery by the covered person in an action brought against the noncovered person. (Insurance Law ' 5104[b]; see, Aetna Life and Casualty Co. v Nelson, 67 NY2d 169, 174; Fowler v Pebble Hill Bldg. Corp., 120 AD2d 486.) The very limited right of an insurer to commence an action to recover first party benefits exists only when a covered person with a right to bring an action for damages for personal injuries against a noncovered person fails to commence such an action within two years after accrual. (Insurance Law ' 5104[b]; Country-Wide Ins. Co. v 3-M Prod. Sales, supra; see, Aetna Life and Casualty Co. v Nelson, supra; Fowler v Pebble Hill Bldg. Corp., supra.)

Pursuant to the definition of a "covered person" in Insurance Law ' 5102(j), the owner, operator and occupants of the subject vehicle are covered persons. As alleged in the complaint, defendants were occupants of the vehicle and defendant Lucero was the operator. Thus, defendants cannot be held liable to an insurer for first party benefits paid to covered persons and plaintiff's complaint is without merit. To the extent that plaintiff might have a claim against an insurer of either defendant, such a claim must be submitted to mandatory arbitration and would be beyond the jurisdiction of this court. (Insurance Law ' 5105[a], [b]; see, Empire Ins. Co. v Metropolitan Suburban Bus Auth., supra.)

Although the motion and cross motion do not specifically seek dismissal of the complaint for failure to state a cause of action, the legal insufficiency of plaintiff's complaint is clear. In arguing the motion and cross motion, the parties have addressed issues which relate to the lack of merit of plaintiff's claim to recover first party benefits from defendants. Under the circumstances, the complaint is dismissed for failure to state a cause of action. (See, Cooper v Galata, 150 AD2d 417; Weiss v Weiss, 138 AD2d 482.)

Dated: August 13, 1999 ______________________________

J.S.C.