Opinion
00-28286.
Decided September 3, 2008.
CHARLES M. HYMOWITZ, PC, Atty. for Plaintiff, Brooklyn, NY.
EPSTEIN GRAMMATICO, ESQS., Attys. for Defendant Koenig-Rivkin, Hauppauge, NY.
McCABE, COLLINS, McGEOUGH ET AL, Attys. for Defendant Nill, Carle Place, NY.
BAXTER SMITH, PC, Attys. for NY Central Mutual Fire Ins. Co., Jericho, NY.
GATHMAN BENNETT, LLP, Attys. for Nill, as Administrator, Huntington, NY.
It is, ORDERED that this motion (# 009) by the defendant, Laura Koenig-Rivkin, for leave to amend her answer and to dismiss the plaintiff's complaint; the cross motion (# 010) by the plaintiff, Leonard J. Augello, for partial summary judgment on the issue of the defendants' liability; and the cross-motion (# 011) by the defendant, Andrew Jay Nill, Jr., as Administrator of the Estate of Andrew Jay Nill, deceased, for leave to amend his answer and to dismiss the plaintiff"s complaint, are decided as follows:
In November of 2000, the plaintiff commenced this action to recover damages for the personal injuries he sustained in a motor vehicle accident that occurred on July 4, 2000 in the parking lot of a retail shopping center. At the time of the accident, the plaintiff was riding as a passenger in a vehicle owned and operated by defendant Nill's decedent. While traversing the parking lot, the Nill vehicle and a vehicle owned and operated by defendant Koenig-Rivkin collided. As a result of the collision, the plaintiff allegedly sustained serious personal injuries for which he seeks recovery from both of the defendants in this action.
In November of 2003, the plaintiff filed a claim against his automobile liability insurer, New York Central Mutual Fire Insurance Company (hereinafter "NYCM") to recover underinsurance motorists' benefits (SUM) under the policy he purchased from NYCM. The record reflects that only the Nill vehicle was underinsured, as the Koenig-Rivkin vehicle was insured under an Allstate policy affording bodily injury limits in excess of that afforded to the plaintiff under his policy with NYCM.
The record further reflects that the insurance carrier for the Nill vehicle, GMAC, tendered its full policy limits of $25,000 to the plaintiff in full settlement of the plaintiff's claims against Nill. After NYCM unsuccessfully petitioned this court to stay the arbitration demanded by the plaintiff, NYCM agreed to advance the plaintiff the $25,000.00 offered by GMAC on behalf of Nill and to arbitrate the plaintiff's claim for underinsurance coverage. The SUM indorsement of the plaintiff's policy afforded a maximum coverage of $250,000.00 for an underinsurance claim.
By determination dated November 17, 2003, the arbitrator found that the plaintiff suffered a serious injury to his back within the contemplation § 5102(d) of the Insurance Law in the subject accident and sustained damages in the amount of $175,000.00. After crediting NYCM with the $25,000.00 payment it had already advanced to the plaintiff, the arbitrator awarded the plaintiff a net award of $150,000.00.
In proceedings of record conducted in the separate arbitration proceeding in January of 2004, Justice James M. Catterson, Jr. confirmed the arbitrator's award of $175,000.00 in favor of the plaintiff.
NYCM refused to pay the $150,000.00 net due under the arbitration award after the plaintiff refused to sign a Release and Trust Agreement which included language by which plaintiff would hold any and all monies recovered for the benefit of NYCM. The Release also afforded NYCM the right to direct and control any and all damage recovery efforts undertaken by the plaintiff against both Nill and Koenig-Rivkin and any others liable for the plaintiff's injuries. The plaintiff was also required to obtain NYMC's consent to any proposed settlement of any claim asserted against any persons liable to the plaintiff including both of the defendants in this action.
As a result of the dispute over the scope of the Release, further proceedings were brought in the separate arbitration proceeding, which had then been assigned to Justice Michael Mullen. By order dated June 28, 2004, Justice Mullen directed the plaintiff to execute the Release and Trust Agreement prepared by NYMC, the scope of which included the plaintiff's claims for recovery of damages against both defendants notwithstanding that the Nill vehicle was underinsured and the Koenig-Rivkin vehicle was not. In said order, Justice Mullen specifically found that the plaintiff's policy with NYMC "contractually binds the respondent [plaintiff here] into cooperating with efforts to recover from both vehicles" as "any other interpretation would serve to unjustly enrich the respondent" [plaintiff here].
Subsequent to the above described proceedings, defendant Andrew Jay Nill died and the within action was stayed by operation of law. By order dated February 20, 2007, entered on motion numbered 005, defendant Andrew J. Nill, Jr., in his capacity as Administrator of the Estate of Andrew Jay Nill, was substituted as a party defendant in the place of the deceased defendant. Thereafter, NYCM moved (# 006) for an order substituting it as the plaintiff in this action in place of plaintiff Augello, which motion was denied by order of this court dated August 7, 2007. NYCM's subsequent motion (# 009) for reargument of its prior motion and/or for leave to intervene in this action was denied by order of this court dated February 21, 2008. Also denied on procedural grounds was defendant Koenig-Rivkin's motion (# 007) for leave to amend her answer and the other relief now demanded on the instant motion-in-chief (# 009), all of which relief is also demanded by defendant Nill in his cross-motion (# 011).
In support of their motion and cross-motion, the defendants argue that the release executed by the plaintiff in favor of NYCM divested the plaintiff of any and all authority to prosecute the claims interposed in this action since NYCM was allegedly subrogated to all of the plaintiff's claims in this action. Alternatively, the defendants argue that the plaintiff is precluded under the doctrines of res judicata or collateral estoppel from recovering damages in excess of the $175,000.00 which the arbitrator awarded and NYCM paid to the plaintiff. The defendants thus move for an order granting them leave to amend their answers to add, as an affirmative defense in bar, the release executed by the plaintiff in favor of NYCM and to add arbitration and award, res judicata and/or collateral estoppel as affirmative defenses in partial bar so as to limit the plaintiff's recovery herein to the $175,000.00 he recovered from NYMC in the SUM arbitration proceeding. The defendants further demand an order granting them dismissal of the plaintiff's complaint or so much thereof as sets forth a demand for damages in excess of $175,000.00 pursuant to CPLR 3211(5). Finally the defendants request, if necessary, a judicial declaration that NYCM is the real party plaintiff in interest in this action.
The plaintiff opposes the defendants' motion and cross motion and cross moves (010) for partial summary judgment on the issue of the defendants' liability for the occurrence of the accident. In support thereof, the plaintiff claims that neither the Release nor the arbitration award bar or anyway limit his continued prosecution of the claims interposed herein. The plaintiff's demands for an award of partial summary judgment rest upon the plaintiff's status as an innocent passenger who engaged in no conduct which caused or contributed to the subject accident. Plaintiff thus demands a denial of the defendants' motion and cross motion and an order granting him partial summary judgment on the issue of the defendants' liability together with an order scheduling an immediate trial on the issue of damages.
The court first considers the cross motion (# 010) by the plaintiff for partial summary judgment on the issue of the defendants' liability and finds that the plaintiff failed to demonstrate his entitlement to such relief. To succeed on a motion for summary judgment, the moving party must make a prima facie showing of his or her entitlement thereto, as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( see Winegrad v NY Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316; Zuckerman v New York , 49 NY2d 557, 427 NYS2d 595). In negligence cases, an award of summary judgment is usually inappropriate since the issue of whether the defendant or the plaintiff acted reasonably under the circumstances can rarely be resolved as a matter of law ( see Andre v Pomeroy , 35 NY2d 361, 362 NYS2d 131; Chahales v Garber , 195 AD2d 585, 600 NYS2d 739 [2d Dept 1993]; Alotta v City Hosp. Ctr. at Elmhurst , 134 AD2d 391, 520 NYS2d 867 [2d Dept 1987]). A party does not carry his or her burden in moving for summary judgment by pointing to gaps in the case or proof asserted by an opponent, as the moving party must affirmatively demonstrate the merit of his or her claim or defense as a matter of law ( see Velasquez v Gomez , 44 AD3d 649, 843 NYS2d 368 [2d Dept 2007]).
In cases arising out of motor vehicle accidents, the existence of fact issues regarding the comparative negligence of the drivers involved in the collision will preclude the granting of summary judgment in favor of one or more of said drivers ( see Perla v Wilson , 287 AD2d 606, 732 NYS2d 35 [2d Dept 2001]; Young v Mauch , 268 AD2d 583, 702 NYS2d 848 [2d Dept 2000]). Those same issues of fact will also preclude an award of summary judgment in favor of innocent passengers or bystanders ( see Morrison v Montzoutsos , 40 AD3d 717, 835 NYS2d 713, Martinez v Mendon Leasing Corp. , 295 AD2d 408, 744 NYS2d 44 [2d Dept 2002]; Mundo v City of Yonkers , 249 AD2d 522, 672 NYS2d 128 [2d Dept 1998]; Rios v Nicoletta , 119 AD2d 562, 500 NYS2d 730 [2d Dept 1986]; cf., Silberman v Surrey Cadillac Limousine Serv. , 109 AD2d 833, 486 NYS2d 357 [2d Dept [1985]).
Although there is some support for the plaintiff's argument that an award of partial summary judgment in favor of an innocent passenger on the issue of the liability of defendant drivers is not precluded ( see Silberman v Surrey Cadillac Limousine Serv. , 109 AD2d 833, supra), more recent case authorities have held otherwise( see Morrison v Montzoutsos , 40 AD3d 717, supra; Martinez v Mendon Leasing Corp ., 295 AD2d 408, supra; Mundo v City of Yonkers , 249 AD2d 522, supra; Rios v Nicoletta , 119 AD2d 562, supra). Under these later case authorities, summary judgment in favor of an innocent passenger has been held to be clearly precluded where issues of comparative negligence on the part of the drivers of the vehicles cannot be resolved as a matter of law.
Here, the relative culpability of the defendant drivers has not been determined in any prior proceedings nor was it admitted or conceded by either of said drivers. Nor was any evidence demonstrating the absence of culpable conduct on the part of either driver submitted to the court on the pending motions. Under these circumstances, the court denies the plaintiff's cross motion for partial summary judgment on the issue of the defendants' liability.
Those portions of the defendants' motion and cross motion for leave to amend their answers to assert the affirmative defenses of release, arbitration and award and res judicata and/or collateral estoppel are granted. The proposed amended answers attached to the defendants' moving papers are deemed served as no responsive pleadings are required. The defendants' further demands for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(5), which the court considers one for summary judgment on the grounds enumerated in CPLR 3211(5) in view of the joinder of issue and the parties' conduct in charting a summary judgment course (see Mihlovan v Grozavu , 72 NY2d 506, 534 NYS2d 656; Fisher v RWSP Realty, LLC , ___AD3d ____, 2008 WL 28105085 [2d Dept 7/22/08], are denied. Neither of the defendants established, by sufficient proof in admissible form, that the release, the prior arbitration award or any judicial orders issued in the prior arbitration proceeding held in this court preclude the plaintiff from prosecuting all claims interposed in this action against the defendants.
Rejected as unmeritorious is defendant Koenig-Rivkin's contention that the order issued by Justice Mullen on June 28, 2004 in the proceeding to stay arbitration commenced by NYCM against the plaintiff collaterally estops the plaintiff from re-litigating the claims asserted in this action. It is clear from a reading of the June 28 2004 order that the plaintiff urged Justice Mullen to limit the scope of the Release and Trust Agreement to plaintiff's claims against the Nill vehicle since it alone was underinsured. It is equally clear that NYCM urged Justice Mullen to find that NYCM was entitled to a release that included the plaintiff's claims against defendant Koenig-Rivkin as well defendant Nill. However, Justice Mullen found the plaintiff's position to be untenable as it was unsupported by the case authorities cited by him. Justice Mullen also found that the plaintiff was obligated, under the terms of his policy with NYCM, to issue the broad Release and Trust Agreement which encompassed the plaintiff's claims against both defendants. He thus directed the plaintiff to execute the Release and Trust Agreement prepared by NYCM.
The court nevertheless finds that since the Release and Trust Agreement executed by the plaintiff' pursuant to Justice Mullen's June 28, 2004 order is not an assignment of the plaintiff's claims against the defendants in this action but merely an instrument which preserves and protects NYCM's subrogation rights, said Release does not preclude the plaintiff's prosecution of all claims asserted in this action. Indeed, the language in the Release clearly contemplates that the plaintiff will continue with the prosecution of this action against both defendants, although it does impose certain obligations upon the plaintiff with respect to the conduct of such litigation, all of which are aimed at assuring that the plaintiff will act in manner consistent with the subrogation rights of NYCM.
Nor does the prior arbitration award preclude the plaintiff's prosecution of all of the claims interposed in this action against the defendants so as to warrant the dismissal of his complaint. However, the defendants' further requests for partial summary judgment on their demands for an order declaring that the plaintiff's damage recovery in this action is limited to the $175,000.00 amount of the arbitration award are granted.
It is well established that arbitration damage awards for bodily injuries arising under uninsured or underinsured (SUM) indorsements which fix the claimant's damages in an amount less than the limits of the SUM coverage, constitute prima facie evidence that the damages awarded constitute the total damages for non-economic loss due the claimant from all culpable parties ( see Velazquez v Water Taxi, Inc ., 49 NY2d 762, 426 NYS2d 467; Leto v Petruzzi , 81 AD2d 296, 440 NYS2d 343 [2d Dept 1981]). The presumption is rebutted where the arbitrator indicates that the damages awarded are limited to the apportioned share of an uninsured or underinsured vehicle or where the damage award contains language indicating that it was not intended to represent the total compensation to which the plaintiff is entitled to recover for his or her injuries ( see Searchwell v L.G.A. Transp. Inc ., 307 AD2d 348, 762 NYS2d 830 [2d Dept 2003]). The fact that the arbitration award relied upon for purposes of establishing a collateral estoppel effect of the award has not been confirmed does not render it insufficient for such purposes ( see Matter of New York Cent. Mut. Fire Ins. Co. v Reinhardt , 27 AD3d 751 , 813 NYS2d 158 [2d Dept 2006]; cf., Gibe v Hajek , 166 AD2d 502, 561 NYS2d 50 [2d Dept 1990]).
A review of the arbitration award at issue reveals that the arbitrator found that the plaintiff's cervical spine injury was caused, in part, by the subject accident and that it constituted a "serious injury" under § 5102(d) of the Insurance Law. The arbitrator further found that the plaintiff was entitled damages in the amount of $175,000.00, which was below the $250.000.00 SUM coverage limits of the plaintiffs' SUM indorsement. The award is not limited to any apportioned share of liability attributable to the Nill vehicle and it contains no language indicating that it was not intended to represent the total compensation to which the plaintiff may be entitled by reason of his injuries. These circumstances warrant a finding that the defendants have made a prima facie showing of their entitlement to partial summary judgment on their claims for a judicial declaration that the plaintiff is collaterally estopped from recovering damages from the defendants in excess of $175,000.00.
It was thus incumbent upon the plaintiff to demonstrate that material questions of fact exist with respect to the issue of preclusion. In an attempt to raise such questions of fact, the plaintiff relies on appellate case authorities emanating from the Supreme Court, Appellate Division for the Second Department wherein the court found that a plaintiff who settles his or her claim for SUM motorists' benefits is not precluded from prosecuting an action at law to recover damages from the purported tortfeasors ( see Interboro Mut. Indem. Ins. Co. v Lindstrand , 289 AD2d 450, 734 NYS2d 634 [2d Dept 2001]; Uccio v Dougan 286 AD2d 437, 729 NYS2d 391 [2d Dept 2001]). Such reliance is, however, misplaced as the plaintiff here did not settle his SUM claim against NYCM. Rather, he litigated said claim in the arbitration proceeding. The plaintiff thus failed to rebut the defendants' prima facie showing of their entitlement to the partial summary judgment demanded by them. Accordingly, the court grants the defendants partial summary judgment on this preclusion issue and declares that the plaintiff is precluded from prosecuting claims for damages against the defendants in excess of $175,000.00.
The remaining portions of the instant motions, including the defendants' demands for an order naming NYCM the real party plaintiff in interest in this action, are denied. The record is devoid of any demonstration of the defendants' entitlement to such relief, particularly in light of this court's prior orders denying NYCM the right to intervene in this action or to be substituted herein in the place of the plaintiff. All remedies regarding any breach of the obligations imposed upon the plaintiff in the Release and Trust Agreement he executed in favor of NYCM are personal to NYCM and beyond the scope of this litigation.