Opinion
No. 21241/11.
2013-02-25
Rosema HYPPOLITE, Plaintiff, v. Jaron JOHNSON and Paul Massaro, Defendants.
Mark J. Linder, Esq. of Harmon Linder & Rogowsky, for Plaintiff. Gail S. Karan, Esq. of Morris Duffy Alonso & Faley, for Defendant Paul Massaro.
Mark J. Linder, Esq. of Harmon Linder & Rogowsky, for Plaintiff. Gail S. Karan, Esq. of Morris Duffy Alonso & Faley, for Defendant Paul Massaro.
JACK M. BATTAGLIA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the “cross-motion” of defendant Paul Massaro for an order dismissing the Verified Complaint and all cross-claims as against him:
-Notice of Cross–Motion
Affirmation in Support
Exhibits A–D
-Affirmation in Opposition to Defendant's Cross–Motion for Summary Judgment on Liability
-Affirmation in Reply
Exhibit A
Plaintiff was represented by Mark J. Linder, Esq. of Harmon Linder & Rogowsky. Defendant Paul Massaro was represented by Gail S. Karan, Esq. of Morris Duffy Alonso & Faley.
Plaintiff Rosema Hyppolite's Verified Complaint alleges that she sustained injury on November 14, 2009, when, as a passenger in a vehicle owned and operated by defendant Jaron Johnson, that vehicle collided with a vehicle owned and operated by defendant Paul Massaro. With this motion, defendant Massaro seeks an order dismissing the Verified Complaint and all cross-claims as against him.
Defendant Johnson apparently has appeared in this action by counsel, who were served with a copy of this motion, but defendant Johnson's answer is not provided, nor is there any statement in defendant Massaro's counsel's Affirmation in Support that Johnson did not answer. As a result, to the extent defendant Massaro seeks dismissal of all cross-claims, his motion must be summarily denied. ( See Wells Fargo Home Mtge., Inc. v. Mercer, 35 AD3d 728 [2d Dept 2006] [“motion omitted a document necessary to the determination of the motion”].)
Defendant Massaro seeks dismissal of the Verified Complaint “on the grounds that plaintiff has no cause of action as against” him ( see notice of motion dated August 29, 2012), but neither in his notice of motion nor in his counsel's Affirmation in Support does he specify the statutory basis for the motion. Although “there is no requirement that a movant identify a specific statute or rule in the notice of motion” ( see Matter of Blauman–Spindler v. Blauman, 68 AD3d 1105, 1106 [2d Dept 2009] ), the movant's papers should be sufficient to inform the Court and the other party or parties whether, for example, the motion is to be governed by the principles applicable to a motion to dismiss pursuant to CPLR 3211 or a motion for summary judgment pursuant to CPLR 3212, particularly where the only “grounds” specified in the notice of motion ( seeCPLR 2214[a] ) refer to the absence of a cause of action.
Nonetheless, where “there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides” ( see Matter of Blauman–Spindler v. Blauman, 68 AD3d at 1106 [internal quotation marks and citation omitted].) Here, defendant Massaro argues “estoppel” based upon a decision and order of Hon. Thomas P. Phelan, Supreme Court, Nassau County, in another action ( see affirmation in support ¶ 8); Plaintiff understands the motion as arguing collateral estoppel ( see affirmation in opposition to defendant's cross-motion for summary judgment on liability, passim ); and movant confirms that understanding in reply with citation to CPLR 3211(a)(5) ( see affirmation in reply ¶ 3.)
The Court will, therefore, address the motion as seeking dismissal of the complaint pursuant to CPLR 3211(a)(5), but will not formally consider CPLR 3211(a)(7), also cited for the first time in movant's reply papers ( see Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827 [2d Dept 2008] [“The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief”].)
The decision and order upon which defendant Massaro relies was issued by Justice Phelan on June 26, 2012 in an action instituted by Progressive Advanced Insurance Company, which had issued a motor vehicle policy that covered Jaron Johnson's vehicle on November 14, 2009. The defendants were five individuals, i.e., the parties here and Samantha Baptiste and Natasha Navarrete, and 16 health care providers who, presumably, had provided medical services or devices to one or more of the individual defendants. Justice Phelan's decision and order states that Samantha Baptiste was a passenger in the Johnson vehicle, but does not state any relationship of Natasha Navarrete to the accident of November 14, 2009. (A Police Accident Report submitted on this motion indicates that Ms. Navarrete was a passenger in the Massaro vehicle.) Justice Phelan also notes that the action had been previously discontinued as against Massaro and Navarrete, but provides no details. (A prior decision and order of Justice Phelan, dated March 16, 2011, states that a Stipulation of Discontinuance had been filed in 2010 as to Massaro and Navarrete.)
As described by Justice Phelan, Progressive's “action [arose] out of alleged fraudulent claims for no-fault reimbursement, uninsured motorists benefits and liability coverage in connection with a [ sic ] an alleged staged accident which occurred on November 14, 2009.” Progressive sought a declaratory judgment that it had “no duty to provide liability coverage to any defendants” with respect to the November 14, 2009 “incident” under the policy it issued to Jaron Johnson, “no duty to defend or indemnify any defendants in any pending or future actions” based upon the incident, and “no duty to provide coverage for claims for no-fault or uninsured motorist benefits” in connection with the incident. As to Jaron Johnson and Samantha Baptiste, one of his passengers, and one of the defendant health care providers, who had provided answers to Progressive's complaint, the motion sought summary judgment ( seeCPLR 3212.) As to the remaining defendants, including plaintiff here, Rosema Hyppolite, Progressive sought judgment by default ( seeCPLR 3215.)
Justice Phelan's decision and order only discusses the aspect of Progressive's motion that sought summary judgment, concluding, based upon the following evidence, that Progressive demonstrated prima facie its entitlement to judgment as a matter of law:
“In support of its motion, plaintiff submits the affidavit of its counsel, as well as the affidavit of Gary Lamay, Senior Medical Representative of Progressive Insurance Company. From the testimony elicited at Jaron Johnson's Examination Under Oath (EUO') it may be reasonably inferred that the subject occurrence was staged. The following information was taken into consideration:
The vehicle involved in the subject occurrence was purchased from James, whom Jaron Johnson knew from the area, although he had never met him. Mr. Johnson never saw the vehicle before purchasing it. The insurance for the vehicle was also purchased through James. Both the vehicle and the insurance were purchased by Jaron Johnson with cash on the street.
Mr. Lamay also submits that the cell phone number used on the subject policy was also used by James Alexis in another loss where a declaratory judgment action has been brought. The record reveals that the subject policy was effective October 27, 2009, eighteen days prior to the subject incident, and was canceled on December 17, 2009, as no premium was paid. It is submitted by counsel for plaintiff that this claim shares common circumstances, parties, policy addresses and phone numbers, among other information, as several other claims submitted under policies issued by plaintiff.”
Neither Jaron Johnson nor Samantha Baptiste submitted any opposition to Progressive's motion, and Justice Phelan found that the opposition submitted by the answering health care provider was not sufficient to avoid summary judgment. In addition to holding that Progressive was entitled to summary judgment against those defendants, Justice Phelan held that Progressive was entitled to judgment by default against the non-answering defendants, including plaintiff here, Rosema Hyppolite, and ordered, “Submit declaratory judgment.” A copy of the judgment was not submitted by any party on this motion.
Justice Phelan's decision and order gives no description of the November 14, 2009 “incident.” Coincidently, in determining that Progressive had met its burden to show prima facie that the incident was a “staged accident,” Justice Phelan relied in part on this Court's decision in A.B. Med. Servs., PLLC v. State Farm Mut. Auto Ins. Co. (7 Misc.3d 822 [Civ Ct, Kings County 2005].) Although Justice Phelan made no explicit determination that Progressive's showing was also sufficient to constitute “proof of the facts constituting the claim” for entitlement to judgment by default ( seeCPLR 3215[f] ), that determination is clearly implied.
Although not an issue in this case, this Court would agree with Justice Phelan that, if Jaron Johnson intentionally brought about the collision on November 14, 2009, then plaintiff here, Rosema Hyppolite, would have no claim against Progressive pursuant to Insurance Law § 3420 should Mr. Johnson fail to pay any judgment she might obtain against him. ( See Matter of Travelers Indem. Co. v. Richards–Campbell, 73 AD3d 1076, 1077 [2d Dept 2010]; State Farm Mut. Auto. Ins. Co. v. Langan, 55 AD3d 281, 284 [2d Dept 2008]; Emanvilova v. Pallotta, 49 AD3d 413, 414 [1st Dept 2008]; State Farm Mut. Auto. Ins. Co. v. Languerre, 305 A.D.2d 490, 491 [2d Dept 2003].)
Similarly, although not an issue here, the Court will assume that, in any action she might institute against Progressive with respect to the November 14, 2009 collision, she will be bound by Justice Phelan's determinations, even though they were made on her default. ( See Gaston v. American Tr. Ins. Co., 40 AD3d 578, 578–79 [2d Dept 2007], mod. on other grounds11 NY3d 866 [2008];Matter of Eagle Ins. Co. v. Facey, 272 A.D.2d 399, 400 [2d Dept 2000]; EBM Med. Health Care, P.C. v. Republic Western Ins., 38 Misc.3d 1, 3 [App Tem, 2d Dept 2012]; compare Magic Recovery Med. & Surg. Supply Inc. v. State Farm Mut. Auto. Ins. Co., 27 Misc.3d 67, 68–69 [App Term, 2d Dept 2010].)
Here, defendant Massaro contends that “the underlying declaratory judgment action, in determining the subject motor vehicle accident was staged, relieved [him] of any fault for the accident”; and that “[a]s defendant Johnson purposefully and intentionally collided with [his] vehicle, it cannot be established that Massaro acted negligently or carelessly with respect to the operation of his vehicle.” ( See affirmation in reply ¶ 10.) According to defendant Massaro, “he was traveling north bound on East 38th Street towards Avenue R [in Brooklyn], stopped at a the [ sic ] stop sign, inched out and was struck by” the vehicle operated by defendant Johnson.
“There are now but two requirements which must be satisfied before the doctrine [of collateral estoppel] is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination ... The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.” (Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455–46 [1985].)
Defendant Massaro does not contend that in Progressive's action Justice Phelan determined Massaro's freedom from fault in causing the November 14, 2009 accident, nor does he show that Massaro's freedom from fault was necessarily decided. The issues before Justice Phelan related to the conduct of Jaron Johnson, Progressive's insured, and the consequences for coverage under Progressive's policy if the accident was “staged” by Mr. Johnson. Indeed, there is no determination in Justice Phelan's decision and order as to Mr. Massaro's participation or not in the “staged accident.” Whatever implication might arise from the Stipulation of Discontinuance as to Mr. Massaro and his passenger is no basis for preclusive effect as to anything in this action.
Even accepting that Plaintiff will be bound in this action by Justice Phelan's determination that defendant Johnson intentionally brought about the November 14, 2009 collision, there is no showing, and certainly no cited legal authority, that Justice Phelan's determination necessarily leads to the conclusion that Johnson's conduct was the sole proximate cause of the collision, such that Plaintiff can have no recovery against Mr. Massaro for any alleged negligence on his part. There was no determination by Justice Phelan that Plaintiff was a participant in the “staged accident,” or that she was aware of defendant Johnson's intention to cause a collision. ( See, generally, State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d 349 [2011].) By defendant Massaro's own account, the operation of his vehicle was governed by a stop sign, generally giving cross traffic the right of way. ( SeeVehicle and Traffic Law §§ 1172, 1142[a]; Pattern Jury Instruction 2:80 [3rd Ed.].)
Defendant's motion is denied.