Hopkins v. Margolias

OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed, without costs, and a new trial ordered.

In this negligence action it was error to strike the affirmative defense, as to the cause of action for personal injuries, that the statutory threshold had not been reached (see Insurance Law, § 671, subd 4). The voluntary payment by the *66defendant’s insurer to plaintiff of first-party benefits in the sum of approximately $750 should not preclude the defendant from raising the defense at the trial. To the extent that Shalem v Teitelbaum (84 Misc 2d 596) is to the contrary, we decline to follow…