The corporation contends, however, that if the defendant was uninsured the claim should have been made within ninety days from the date of the accident. The corporation does not affirmatively allege that defendant was uninsured. The concluding paragraph of section 608 of the Insurance Law provides a means whereby the corporation can ascertain whether or not defendant was insured. Since such means have been specifically made available to the corporation it should not neglect to utilize them. If, upon inquiry, it turns out that defendant was uninsured, defendant may so allege as a separate defense. The defense as presently pleaded is sham and must be stricken.
Plaintiff’s motion is granted to the extent of directing the corporation to return the envelope and to serve an amended answer specifically answering paragraphs ‘Second’ and ‘Third’ of the complaint and omitting the first separate defense unless the corporation affirmatively alleges that defendant was uninsured. Said answer may be served within thirty days after service of a copy of the order hereon. This should give the corporation sufficient time to ascertain whether the defendant was insured or not.
Settle order.
