Opinion
Index Nos. 161860/2015 595998/2017 Motion Seq. No. 003
05-23-2023
TRACY TYLER, Plaintiff, v. THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, JOHN DOE, ABC CORPORATION, Defendant. THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION Plaintiff, v. LUIS SANCHEZ, EXTASEA CAB CORP, TINA TAXI SERVICE, QUEENS MEDALLION BROKERAGE Defendant.
Unpublished Opinion
Motion Date 01/27/2020
PRESENT: HON. JAMES G. CLYNES Justice
DECISION + ORDER ON MOTION
JAMES G. CLYNES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91 were read on this motion to/for AMEND CAPTION/PLEADINGS.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 66. 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91 were read on this motion to/for _JUDGMENT - SUMMARY.
Upon the foregoing documents and following oral argument, the motion by Third-Party Defendants Luis Sanchez and Extasea Cab. Corp, to amend their answer to the Third-Party Complaint pursuant to CPLR 3025, and upon such amendment granting summary judgment pursuant to CPLR 3212 dismissing the Third-Party Complaint against Defendants Luis Sanchez and EXTASEA Cab. Corp, is decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of a December 3, 2011 motor vehicle accident between Plaintiff pedestrian and a vehicle that allegedly fled the scene of the accident. Plaintiff moved for leave to sue MVAIC pursuant to Insurance Law 5218. which was referred to a Framed Issue Ilearing before a Special Referee. The Special Referee found that Petitioner Taylor met his burden and demonstrated that through reasonable efforts he was not able to ascertain the identity of the driver who injured him. In a November 13, 2015 Decision and Order, the Hon. Debra A. James ruled that the alleged driver and owner of the vehicle involved in the accident did not exist at the address listed on the police report and was not found in the records of the New York Secretary of State and Petitioner Tracy was permitted to commence an action against MVAIC. In a February 16, 2016 Decision and Order, Judge James confirmed the findings of the Special Referee. MVAIC appealed both the November 13, 2015 and February 16, 2016 Decisions and the Appellate Division, First Department affirmed them. In a September 23, 2019 Decision and Order, the Hon. Adam Silvera denied MVAIC's motion for summary judgment ruling that issues of fact exist and that it would be prejudicial to Plaintiff because while the names of the Third-Party Defendants were known to Plaintiff as they were listed in the Police Report, those individuals did not exist at the address listed and as such Plaintiff was left with no one but MVAIC to sue.
While leave to amend a pleading should be freely given absent prejudice or surprise, a court may deny leave to amend when the proposed amendment lacks merit (Cafe Lughnasa Inc. v A&R Kalimian LLC. 176 A.D.3d 523 [1st Dept 2019]; Verizon NY, Inc. v Consol. Edison. Inc.. 38 A.D.3d 391 [1st Dept 2007]).
Here. Third-Party Defendants Sanchez and Extasea seek to assert MVAICs defense that Plaintiff Tyler did not make reasonable efforts to ascertain the identity of the driver. They submit that MVAIC will not be surprised or prejudiced because MVAIC uncovered the facts upon which Third-Party Defendants Sanchez and Extasea seek to base their amended complaint contending that MVAIC did not properly raise the issue of Plaintiffs efforts in the prior proceedings, and they may do so now because third-party defendants may raise a defendant's defense to plaintiffs complaint even where it is no longer available to a defendant. They further submit that the evidence in the underlying proceeding showed that Plaintiff could have ascertained the identities of the taxi and the taxi's owner and driver, his petition against MVAIC should have been dismissed, and in turn, the Third-Party Complaint should be dismissed.
In opposition, Plaintiff Tyler contends that the issue of Plaintiffs reasonable efforts to identify the tortfeasor had already been adjudicated in this case and has already been resolved, and that the defense Third-Party Defendants Sanchez and Extasea seek to assert is specific to MVAIC and not available to them.
Tn opposition to the motion by Third-Party Defendants Sanchez and Extasea, MVAIC contends that Third-Party Defendants have no grounds to add Article 52 defenses because they are not alleged as causes of action in either the Plaintiffs or Third-Party Complaints. MVAIC further contends that in this negligence action, Third-Party Defendants do not stand in MVAIC's shoes but are averse to MVAIC and MVAIC's defense is that of a non-involved party. This Court agrees.
The Third-Party Complaint is not without merit as a matter of law. Plaintiffs noncompliance with Insurance Law Article 52, Section 5218, specifically whether Plaintiff exhausted all reasonable efforts to ascertain the identity of the tortfeasor, is a statutory defense available only to MVAIC (Insurance Law Article 52, Section 5218). These affirmative defenses are unique to MVAIC and are statutory requirements which a claimant must satisfy before permission to sue MVAIC may be granted (NYS Ins Law Article 52, Section 5218). The issues pertaining to Plaintiffs application for permission to sue MVAIC were resolved in prior litigation. Third-Party Defendants Sanchez and Extasea cannot now stand in MVAIC's shoes and assume those defenses as their own, because the statutory requirements do not apply to them. The motion is denied. Accordingly, it is
ORDERED that the motion by Third-Party Defendants Luis Sanchez and Extasea Cab Corp, for leave to amend their answer to the third-party complaint and for summary judgment dismissing the Third-Party Complaint against Defendants Luis Sanchez and Extasea Cab Corp, is DENIED; and it is further
ORDERED that any relief sought not expressly addressed herein has nonetheless been considered; and it is further
ORDERED that within 30 days. Plaintiff shall serve Defendants with a copy of this order with Notice of Entry.
This constitutes the Decision and Order of the Court.