Summary
granting motion for summary judgment in favor of plaintiff insurance company seeking payment of premium and ruling that defenses "involv[ing] the correctness and propriety of payroll rates and classifications . . . cannot be raised until [insureds] exhaust the mandatory administrative [remedies] created by law"
Summary of this case from American Home Assurance Co. v. Phineas Corp.Opinion
December 1, 1960
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, WILLIAM S. SHEA, J.
Charles G. Tierney, Harry Schechter and Milton L. Freedman for appellants.
Gary Karp for respondents.
The partial defenses alleged by defendants in resistance of plaintiffs' claim involve the correctness and propriety of payroll rates and classifications assigned to defendants' employees and cannot be raised until defendants exhaust the mandatory administrative procedure to be followed by an assured in contesting rates and classifications. (See Commissioners of State Ins. Fund v. Mascali-Robke, 208 Misc. 316, affd. 1 A.D.2d 945; Commissioners of State Ins. Fund v. Blank, 205 Misc. 322; Commissioners of State Ins. Fund v. Sealand Corp., 13 Misc.2d 745; Matter of General Mut. Ins. Co. v. Mutual Ins. Rating Bureau, 23 Misc.2d 991.)
Since the issue of improper classification is collateral to the issues in this action, the court below had no power or authority to render a determination and defendants having allowed the question of classification and rates to go by default in not following the proper administrative procedure, plaintiffs were entitled to summary judgment.
The order denying plaintiffs' motion for summary judgment should be reversed, with $10 costs, and motion granted.
Concur — HECHT, J.P., STEUER and TILZER, JJ.
Order reversed, etc.