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Appellate Division, Fourth Department opines on the issue of non-cooperationOctober 11, 2008

Progressive Ins. Co. v Strough
2008 NY Slip Op 07463 (4th Dept. 2008)

We further conclude that the court properly denied that part of plaintiff’s cross motion for [*2]summary judgment declaring that plaintiff has no duty to indemnify defendant for claims arising from the motor vehicle accident in question, including claims for no-fault benefits. Plaintiff failed to support its motion with evidence provided by an individual with personal knowledge of the facts (see Chiarini v County of Ulster, 9 AD3d 769, 769-770), and the documents provided by plaintiff in support of the cross motion do not establish that defendant failed to cooperate with plaintiff, as alleged in the complaint.

Comment: Does the no-fault endorsement provide a non-cooperation defense? I remember a case entitled Utica Mut. Ins. Co. v. Timms, 293 AD2d (2d Dept. 2002) , which says otherwise. There is another case from the Fourth Department a few years ago, which opined on the non-cooperation defense as it relates to no-fault benefits. See, Simmons v. State Farm Mut. Auto. Ins. Co. 16 A.D.3d 1117 (4th Dept. 2005).

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