Liberty Mutual Insurance v. Graham

Order unanimously affirmed, without costs. Memorandum: We affirm for the reasons stated in the decision at Special Term, Murphy, J. We note, however, that the court’s reference to 11 NYCRR 65.15 was in error since that regulation applies only to accidents occurring on or after December 1, 1977. The applicable regulation is 11 NYCRR 65.6, as extant from July 15, 1974 to November 28,1977. Additionally, since it is unclear in the record when Social Security disability benefits were actually paid to defendant, we note that plaintiff’s complaint sets forth only a cause of action for breach of a contract dated March 26, 1977 and does not assert a cause of action for restitution of any such benefits actually paid to defendant prior to the date of the contract. (Appeal from order of Onondaga Supreme Court, Murphy, J. — dismiss complaint, interrogatories.) Present — Dillon, P.J., Hancock, Jr., Callahan, Doerr and Moule, JJ.