Commissioners of the State Insurance Fund v. Regenstreif

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., Stetter and Tjlzer, JJ.

Order reversed, etc.