Opinion
No. 2020-09276 Index No. 715098/17
07-19-2023
In the Matter of Country-Wide Insurance Company, petitioner-respondent, v. Susanne Hills, et al., appellants; Laura Nesha Dulin, et al., proposed additional respondents-respondents.
Krentsel Guzman Hebert, LLP, New York, NY (Marcia K. Raicus and Mischel & Horn, P.C. [Scott T. Horn], of counsel), for appellants. Gail S. Lauzon, Hicksville, NY (Susan J. Mitola of counsel), for proposed additional respondents-respondents.
Krentsel Guzman Hebert, LLP, New York, NY (Marcia K. Raicus and Mischel & Horn, P.C. [Scott T. Horn], of counsel), for appellants.
Gail S. Lauzon, Hicksville, NY (Susan J. Mitola of counsel), for proposed additional respondents-respondents.
FRANCESCA E. CONNOLLY, J.P. CHERYL E. CHAMBERS PAUL WOOTEN BARRY E. WARHIT, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, or in the alternative, to temporarily stay arbitration and to add Laura Nesha Dulin and GEICO Indemnity Company as additional respondents in the proceeding, Susanne Hills and Precious Hills appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered November 30, 2020. The order, insofar as appealed from, denied that branch of the motion of Susanne Hills and Precious Hills which was for a framed-issue hearing and granted that branch of the petition which was to permanently stay arbitration.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The underlying facts are summarized in our decision and order determining a prior appeal in this proceeding (see Matter of Country-Wide Ins. Co. v Hills, 173 A.D.3d 861). The decretal paragraph in that decision and order provided that "the matter is remitted to the Supreme Court, Queens County, for further proceedings, including the amendment of the caption in accordance herewith" (id. at 862).
Susanne Hills and Precious Hills (hereinafter together the appellants) moved, inter alia, for a framed-issue hearing, purportedly in accordance with this Court's decision and order in the prior appeal. The proposed additional respondents opposed the appellants' motion. In an order entered November 30, 2020, the Supreme Court, among other things, denied that branch of the appellants' motion and granted that branch of the petition which was to permanently stay arbitration. This appeal ensued.
"'A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court'" (Berry v Willaims, 106 A.D.3d 935, 937, quoting Matter of Trager v Kampe, 16 A.D.3d 426, 427; see Daniele v Pain Mgt. Ctr. of Long Is., 189 A.D.3d 1351; Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 173 A.D.3d 1154, 1156; Reilly v Achitoff, 160 A.D.3d 998, 999; Wiener v Wiener, 10 A.D.3d 362, 363; Campbell v Campbell, 302 A.D.2d 345, 346). "An order or judgment entered by the lower court on a remittitur 'must conform strictly to the remittitur'" (Matter of Ferrara, 50 A.D.3d 899, 900, quoting Wiener v Wiener, 10 A.D.3d at 363). "If the remittitur is erroneous in any respect, or if there is any uncertainty as to the effect of the language employed, the appropriate remedy is an application to amend it" (Wiener v Wiener, 10 A.D.3d at 363; see CPLR 5524). Further, the language in the decretal paragraph of this Court's decision and order controls the extent of the remittitur (see Daniele v Pain Mgt. Ctr. of Long Is., 189 A.D.3d at 1352; Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 173 A.D.3d at 1156).
Contrary to the appellants' contention, the Supreme Court's denial of that branch of their motion which was for a framed-issue hearing was consistent with the terms of this Court's remittitur in this matter, as this Court did not remit the matter for a framed-issue hearing (see Matter of Country-Wide Ins. Co. v Hills, 173 A.D.3d at 862; cf. Matter of Hertz Corp. v Holmes, 106 A.D.3d 1001, 1002). Further, as the petitioner established, prima facie, that the offending vehicle was insured at the time of the accident, and the appellants failed to raise a question of fact as to whether the offending vehicle was insured, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration (see Matter of Government Empls. Ins. Co. v Charris, 192 A.D.3d 688, 689; Matter of Metropolitan Prop. & Cas. Ins. Co. v Singh, 98 A.D.3d 580, 581).
In light of our determination, we do not reach the parties' remaining contentions.
CONNOLLY, J.P., CHAMBERS, WOOTEN and WARHIT, JJ., concur.