SCOTLAND v. ALLSTATE INS. COM

Ordered that the order dated November 4, 2005 is reversed, on the law, with costs, the order of the Civil Court, entered November 18, 2003, is modified accordingly, the motion is granted, and the first, second, and third affirmative defenses are stricken.

The plaintiff sued his automobile insurer under the uninsured motorist provision of the subject policy. The policy was issued in Virginia while the plaintiff resided there. Under the circumstances presented, the serious injury threshold of Insurance Law § 3420 (f) (1) does not apply here, and the plaintiffs motion to strike the first, second, and third affirmative defenses, which, in effect, all alleged that this action is barred because the plaintiff did not sustain a serious injury, should have been granted ( cf. Montgomery v Daniels, 38 NY2d 41). [ See 10 Misc 3d 127(A), 2005 NY Slip Op 51888(U) (2005).]