The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Joseph T. Benoit ("plaintiff") brings this action claiming that he is entitled to proceeds from The Prudential Insurance Company of America ("Prudential" and/or "defendant") under a group accidental death and dismemberment insurance policy issued to Oppenheimer Funds, Inc. ("Oppenheimer Funds"). Plaintiff originally filed his Complaint in the Supreme Court of the State of New York, County of Monroe on April 12, 2007. A copy of the Summons and Complaint was received by Prudential on or about July 24, 2007. The instant suit was removed from New York State Supreme Court on August 17, 2007,*fn1 and Prudential now moves for summary judgment*fn2 arguing that: by the terms of the policy, plaintiff is time-barred from bringing the instant suit; or alternatively substantial evidence supports defendant's decision denying plaintiff's benefits under either an abuse of discretion standard of review or de novo review. For the reasons set forth below, Prudential's motion is granted.
At the outset, the Court applies Local Rule of Civil Procedure 56.1. That rule requires that the moving party include with its motion for summary judgment a "separate, short, and concise statement of the material facts to which the moving party contends there is no genuine issue to be tried." See W.D.N.Y. Loc. R. Civ. P. 56.1(a). Prudential has complied with this rule. See Def.'s Statement of Material Facts Docket # 15 ("SOMF"). The rule also imposes a duty on the opposing party, in this case, the plaintiff. In that regard, it states, "[t]he papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." See W.D.N.Y. Loc. R. Civ. P. 56.1(b). The Local Rules also provide that "[e]ach statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, as required by Federal Rule of Civil Procedure 56(e)," with citations identifying "with specificity" the relevant page or paragraph of the cited authority. See id. R. 56.1(d). Since plaintiff has only partially complied with Rule 56.1(b) and 56.1(d), the third paragraph of Rule 56.1 comes into play. It reads: "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." See id. R. 56.1(c) (emphasis added). In view of this provision, the Court deems admitted all of Prudential's statements of facts contained in its May 1, 2008, Statement of Material Facts Pursuant to Local Rule 56.1 (see Docket # 15). Accordingly, the undisputed facts are as follows:
Plaintiff was involved in a one car accident which occurred on November 3, 2002. The accident resulted in injuries rendering plaintiff a paraplegic. Due to his employment with Oppenheimer Funds, at the time of the accident plaintiff was a participant under a group accident death and dismemberment policy with Policy Number G-17694 (the "Policy"), which provides for accidental death and dismemberment benefits in the amount of $84,000. The Policy provides for payment of benefits for "loss due to Quadriplegia, Paraplegia, or Hemiplegia." See SOMF ¶ 5. The Policy further provides conditions under which benefits will be paid:
"Benefits for accidental Loss are payable only if all of these conditions are met:
(1) You sustain an accidental bodily injury while a Covered Person.
(2) The Loss results directly from that Injury and from no other cause.
(3) You suffer the Loss within 90 days after the accident. But, if the Loss is due to Quadriplegia, paraplegia, or Hemiplegia, you suffer the Loss within 365 days after the accident.
Not all such Losses are covered. See Losses Not Covered below." See SOMF ¶ 6. Further, in the section entitled "Losses Not Covered," the Policy provides "A Loss is not covered if it results from ... [claimant] Being legally intoxicated or under the influence of any narcotic unless administered or consumed on the advice of a Doctor." See SOMF ¶ 7. In addition, the Policy sets forth the time within which a legal action is required to be filed:
Legal Action: No action at law or in equity shall be brought to recover on the Group Contract until 60 days after the written proof described above is furnished. No such action shall be brought more than three years after the time within which proof of loss is required.
See SOMF ¶ 8. Moreover, "Proof of Loss" is defined in the Policy as follows:
Prudential must be given written proof of the loss for which claim is made under the Coverage. This proof must cover the occurrence, character and extent of that loss. It must be furnished within 90 days after the date of the loss, except that:
(1) If any Coverage provides for periodic payment of benefits at monthly or shorter intervals, the proof of loss for each such period must be ...