State Farm Mutual Automobile Insurance v. Deichmeier

—In an action for a judgment declaring that the plaintiff insurer is not required to pay the defendant insured certain no-fault benefits, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 21, 1984, which granted the defendant’s motion for summary judgment dismissing the complaint and the plaintiff’s reply and awarding the defendant recovery on her four counterclaims.

Judgment modified, on the law, by adding thereto a provision declaring that the defendant Evelyn Deichmeier is entitled to no-fault benefits under a policy of automobile insurance issued to her by the plaintiff State Farm Mutual Automobile Insurance Company. As so modified, judgment affirmed, with costs to the defendant.

No questions of fact exist regarding the arbitration proceeding encompassing the defendant’s claim for no-fault benefits for the period between February 13, 1982 and February 13, 1983, and, therefore, the defendant was properly granted summary judgment. The plaintiff failed to make any showing through acceptable medical proof that the defendant was not entitled to receive no-fault benefits during this period of time. The report of Dr. Hudak submitted during an earlier arbitration proceeding pertains to, and resulted from, his examination during a period of time not encompassed by the proceeding presently sub judice.

We note that Special Term erred in dismissing the complaint without declaring the rights of the parties (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.