Key Takeaway
Court rules standing defense waivable in no-fault insurance cases when not properly raised in answer or pre-answer motion, emphasizing proper pleading procedures.
Kruger v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 09456 (3d Dept. 2010)
This is why I always plead every affirmative defense in every answer I generate.
“After joinder of issue and discovery, defendant moved for dismissal of the complaint, asserting for the first time that plaintiff had assigned her right to payment for no-fault benefits to her chiropractor and did not have standing to bring the present action. Supreme Court agreed that plaintiff lacked the capacity to sue and dismissed the complaint, and plaintiff appeals.
Defendant asserted that plaintiff lacked standing to maintain this action but, as that defense was not raised in a pre-answer motion to dismiss or in defendant’s answer, it was waived and cannot [*2]now be advanced (see CPLR 3211 , ; McHale v Anthony, 70 AD3d 466, 467 ; Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1087 ). Contrary to defendant’s contention, the standing issue does not implicate the jurisdiction of Supreme Court such as to render it nonwaivable. Supreme Court is empowered to determine whether defendant is liable to pay no-fault benefits (see Marangiello v Kamak, 64 AD2d 624, 625 ), and whether plaintiff is a proper person to pursue that claim “is an issue separate from the subject matter of the action or proceeding, and does not affect the court’s power to entertain the case before it” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 ; see Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092-1093 ). Accordingly, defendant waived its right to assert lack of standing as an affirmative defense.”
Related Articles
- Motion seeking leave to amend the answer to seek affirmative defense of lack of standing is proper
- Standing – the Defense Applied Outside the No-Fault Arena
- Assignment valid during unresolved lawsuit
- Assignment not necessary to make a prima facie case in an assigned first-party action
Legal Update (February 2026): Since this 2010 decision, New York courts have continued to develop the jurisprudence around assignment of benefits and standing requirements in no-fault cases, with potential changes to how waiver of standing defenses is analyzed under CPLR 3211. Additionally, regulatory amendments to no-fault insurance provisions may have affected the procedural requirements for asserting standing challenges. Practitioners should verify current court interpretations and procedural rules when addressing assignment of benefits and standing issues in first-party no-fault litigation.
