ORDERED, that the application of Plaintiffs is hereby granted to the extent set forth herein below; and that the application of Defendants is hereby denied in all respects.

Plaintiffs move this Court for an Order, pursuant to CPLR 3212, granting Plaintiffs summary judgment.

Defendant moves this Court for an Order, pursuant to CPLR 3212 granting summary judgment to Defendants and denying Plaintiffs' Motion for summary judgment.

This action arises out of a motor vehicle accident which occurred on August 26, 2003, wherein [*2]Plaintiff's decedent, JAMES E. RUSSO, 17 years of age, was the operator of a motor vehicle owned by his father, Plaintiff EUGENE O. RUSSO, and insured by Defendant ROYAL & SUN ALLIANCE, under a standard automobile insurance policy issued in and under the Laws of the State of New York. Plaintiff's decedent expired on September 9, 2003, after being hospitalized in a coma at Nassau University Medical Center, as a result of complications of blunt force head trauma with fractures of the skull and epidural hemorrhage.

At the outset, the Court notes that Defendant's Motion for summary judgment, which it also uses as opposition to Plaintiffs' Motion for summary judgment, has both affirmations and affidavits attached thereto, none of which are proffered by individuals with true personal knowledge of the facts set forth therein, therefore failing to meet the requirement of evidentiary proof in either opposing or supporting a Motion for summary judgment (see generally Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

This action is brought because Defendant has refused and failed to pay any of the obligations it is responsible for under the insurance policy, nor has Defendant properly denied responsibility for same, as is required pursuant to New York State's no-fault regulations (see 11 NYCRR 65-3(c)(1)), and pursuant to New York State case law (see, e.g., Presbyterian Hosp. v. Atlantic Cas. Co., 210 AD2d 210, 619 NYS2d 337 [2nd Dept 1994]).

The record supports the conclusion that the reason Defendant has engaged in said conduct, asserting the file continues to be under investigation pending receipt of test results and reports, apparently believing intoxication to be an issue, although never stating such, without providing any of the individuals and/or entities they have failed to pay with any good faith basis for the delays. While Defendant claims to be awaiting further authorizations, whether from Plaintiffs, doctors or the hospital, the record clearly demonstrates they received all the authorizations said parties are able to supply, and that Defendant erroneously seeks an authorization for Suffolk County Police records that is totally unnecessary, as such records require no authorization. As an insurer in the State of New York, Defendant is charged with knowing this, and therefore can not use their own failure to properly investigate as an excuse for refusal to meet its obligations.

In a situation where a no-fault insurer intends to rely on the exclusion defense of intoxication", said carrier must deny the claim, in writing, within 30 days (see, Insurance Law 5106[a]). In the instant case, to date, it is undisputed that the insurer has failed to deny these claims in writing. They are, therefore, now precluded from doing so (see, Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 NY2d 274, 660 NYS2d 536 [1997]; Presbyterian Hosp. in the City of New York v. Aetna Cas. & Surety Co., 233 AD2d 431, 650 NYS2d 255 [2nd Dept 1996]; Bennett v. State Farm Ins. Co., 147 AD2d 779, 537 NYS2d 650 [3rd Dept 1989]) (failure to diligently investigate claim (i.e., intoxication defense) is violation of no-fault carrier's duty to act expeditiously in such matters (11 NYCRR 65-3.2) and is a separate basis for precluding denial of claim).

Plaintiffs' Counsel sets forth the financial obligations of Defendant in this matter that said Defendant has failed to pay or deny for approximately two and one-half years, including but not necessarily limited to:

1.Hospital bills:$108,513.34, overdue and continuing to earn interest at 2% per month; [*3]

2.Doctor bills:$22,828.18, overdue and continuing to earn interest at 2% per month;

3.Death Benefit: $5,000.00, overdue and continuing to earn interest at 2% per month;

4.Funeral Expenses: $7,864.40, overdue and continuing to earn interest at 2% per month.

(See, Presbyterian v. Maryland, supra ;, see also Insurance Law 5106(a) and 11 NYCRR 65-3.9); furthermore, an award of interest is mandatory, not discretionary (see, e.g., St. Claire's Hosp. v. AllState Ins. Co., 215 AD2d 641, 628 NYS2d 128 [2nd Dept 1995]); Plaintiffs are therefore entitled to interest on all overdue amounts at the rate of 2% per month 30 days from the date they were billed (Hempstead General Hosp. v. Ins. Co. of North America, 208 AD2d 501, 617 NYS2d 478 [2nd Dept 1994]; Smithtown General Hospital v. State Farm Ins. Co., 207 AD2d 338, 615 NYS2d 426 [2nd Dept 1994]).

5.Attorney's Fees: approximately $850.00 due and owing;

(see Insurance Law 5106(a) and 11 NYCRR 65-4.6(e)); (Hempstead General v. Ins. Co. of North America, supra ; Smithtown General v. State Farm, supra ); an award of attorney's fees is also mandatory, not discretionary, under the no-fault laws (St. Claire's v. AllState, supra ).

To grant summary judgment, it must clearly appear that there are no material issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498, 144 NE2d 387 [1957] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498, 144 NE2d 387 [1957]).

Once a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact is shown, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action (Zuckerman v. City of New York, 49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 [1980]).

While Plaintiffs have clearly constructed a prima facie entitlement to judgment as a matter of law, Defendant has not even come close. Aside from the lack of evidentiary proof in their response and Cross-Motion, as addressed herein above, there are numerous statements of facts and characterizations of documents in Defendant's papers that are completely dispensed with by the careful and comprehensive rebuttal set forth by Plaintiffs' submissions, as well as numerous omissions of important dates and facts that Plaintiffs' papers fill in, to the detriment of Defendant's defense and prosecution of the within Motions.

Plaintiffs' claims herein are certainly not premature. In fact, they are, in the realm of New York State's no-fault insurance laws, ancient, and well past the time these matters should have been properly disposed of by the carrier. Returning to the instructive decision of the Court of Appeals in Presbyterian v. Maryland, supra , this Court notes the importance of the following language in said decision:

The Court "...concluded that although "[i]ts literal language requires prompt notice of disclaimer after decision to do so* * * by logical and practical extension, there is imported the obligation to reach the decision to disclaim liability or deny coverage promptly too" (Allstate Ins. Co. v. [*4]Gross, 27 NY2d 263, 266, 317 NYS2d 309, 265 NE2d 736, supra ). In Allstate, the Court refused to allow the insurer to "seek[ ] shelter behind the words of the statute" (id.). Rather, it relied upon "the statutory plan to protect the injured parties and their alternative source of compensation,"and "the risks unnecessarily delayed disclaimers of liability or denials of coverage pose to each " ( id., at 267-268, 317 NYS2d 309, 265 NE2d 736 [emphasis added] ). The Court, therefore, affirmed the lower court's preclusion remedy and declaration obligating the insurer to defend the insured on the basis of its untimely disclaimer (id., at 270, 317 NYS2d 309, 265 NE2d 736; see also, Hartford Ins. Co. v. County of Nassau, 46 NY2d 1028, 1029, 416 NYS2d 539, 389 NE2d 1061, supra ). Zappone v. Home Ins. Co. (55 NY2d 131, 447 NYS2d 911, 432 NE2d 783, supra ) is similarly instructive and supportive. There, we noted that "[t]he purpose for which subdivision 8 of section 167 was enacted was to avoid prejudice to the insured, the injured claimant and the Motor Vehicle Accident Indemnity Corporation, each of whom could be harmed by delay in learning of the carrier's position " (id., at 137, 447 NYS2d 911, 432 NE2d 783 [emphasis added], citing Allstate Ins. Co. v. Gross, 27 NY2d 263, 267, 317 NYS2d 309, 265 NE2d 736, supra ). In Zappone, the Court distinguished an insurer's denial of liability based upon a policy exclusion and a breach of a policy condition from an insurer's denial based on lack of coverage, such as where no contractual relationship exists with respect to the subject vehicle and incident (id., at 136-137, 447 NYS2d 911, 432 NE2d 783). The Court concluded that the insurer was not subject to preclusion in the lack of coverage situation where "there never was any insurance in effect" (id., at 138, 447 NYS2d 911, 432 NE2d 783; compare, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 659 NYS2d 246, 681 NE2d 413 [decided today] ). Zappone explained, however, that where "the policy covers the driver and the vehicle and the accident would be covered except for the specific policy exclusion," such as occurred here, " the carrier must deny coverage on the basis of the exclusion if it is not to mislead the insured and the injured person to their detriment" (Zappone v. Home Ins. Co., supra , 55 NY2d, at 136, 447 NYS2d 911, 432 NE2d 783 [emphasis added]).

In conclusion, while Defendant brings forth a resounding lack of evidentiary proof, the final blow by Plaintiffs is an affidavit by an individual who was with JAMES E. RUSSO prior to the within motor vehicle accident, attesting to the fact that the decedent was not intoxicated prior to the collision.

For all the reasons stated herein above, it is, therefore,

ORDERED, that the application of Plaintiffs for an Order, pursuant to CPLR 3212, granting Plaintiffs summary judgment, is hereby granted in all respects, to be set forth in the Settled Order directed herein below, and it is further

ORDERED, that the application of Defendant for an Order, pursuant to CPLR 3212 granting summary judgment to Defendants and denying Plaintiffs' Motion for summary judgment, is hereby denied in all respects, and it is further.

ORDERED, that Plaintiffs Counsel is hereby directed to serve a copy of this order, with Notice of Entry, upon Counsel for all the remaining parties, and upon the Calendar Clerk of this Court within twenty (20) days of the date of this order. [*5]

Settle order on 10 days notice.

Dated: Riverhead, New York

August 7, 2006____________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C.