Opinion
No. CV–014995–14.
08-12-2015
STATE FARM FIRE & CASUALTY CO. a/s/o Martires & Christin Alvarez, Plaintiff(s) v. ADRI LEASING CORP., Margaret Blackmer, Defendant(s).
Serpe, Andree & Kaufman, Huntington, Attorneys for Plaintiff. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, Attorneys for Defendants.
Serpe, Andree & Kaufman, Huntington, Attorneys for Plaintiff.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, Attorneys for Defendants.
SCOTT FAIRGRIEVE, J.
Findings of Fact
State Farm Fire & Casualty Co. (hereinafter referred to as State Farm) insured the vehicle owned by Martires Alvarez. American Transit Insurance Company (hereinafter referred to as American Transit) insured the vehicle owned by defendant Adri Leasing Corp. and driven by defendant Margaret Blackmer.
On September 27, 2013, the defendant driver Margaret Blackmer was involved in a motor vehicle accident when she struck Martires Alvarez's (hereinafter referred to as "insured") parked vehicle. The insured filed a claim with State Farm to recover for damage sustained to the vehicle. After inspecting the vehicle, State Farm determined the vehicle to be a total loss, and paid the insured $11,955.75. Due to the fact that the insured's vehicle was a total loss, the insured was advised to contact American Transit for out-of-pocket expenses of $2,022.02 that were incurred due to the accident.
On February 27, 2014, State Farm claims to have sent a letter to American Transit detailing the payments that State Farm made to its insured, and notifying American Transit of their subrogation claim. The only proof concerning the mailing of this letter is found in the affirmation of plaintiff's attorney Jay Seltzer who has no personal knowledge.
On April 14, 2014, American Transit and the insured entered into a written agreement entitled "Release and Settlement of Known Property Damage Claim and Claims Incidental to Property Damage Only" to pay the insured $2,022.02 for out-of-pocket expenses. American Transit claims that because of the written agreement with the insured, American Transit is not required to reimburse State Farm for the money State Farm paid to its insured. The Release states in part:
FOR AND IN CONSIDERATION OF the payment to me/us at this time of the sum of Two Thousand Twenty–Two Dollars 02/100 Dollars ($2,022.02) the receipt of which is hereby acknowledged. I/We, being of lawful age, do hereby release, acquit and forever discharge:
CORP ADRI LEASING / MARGARET BLACKMER of and from any and all known damage actions, including but not limited to loss of vehicular use, rental, towing and storage charges on account of, or in any way growing out of and/or resulting from the accident which occurred on or about 10/27/2013 at or near E. PINE ST & LONG BEACH BLVD/NASSAU
The defendant filed a motion for summary judgment and the plaintiff filed a cross motion for summary judgment on the issue of liability.
Issues
Can summary judgment be granted to the plaintiff on the issue of liability?
Was State Farm's subrogation rights extinguished when American Transit entered into a release with State Farm's insured?
Conclusions of Law
First, this court addresses the issue of liability. Police reports are normally not admissible as evidence under the business records exception. Turner v. Spaide, 108 A.D.2d 1025, 485 N.Y.S.2d 593 (3d Dept 1985). However, police reports may be admissible if it is found that the statement therein contains an admission against interest. Penn v. Kirsh, 40 A.D.2d 814, 338 N.Y.S.2d 161, 162 (1st Dept 1972).
Summary judgment may be granted on the issue of liability when a police report contains an admission against interest. Vaden v. Rose, 4 AD3d 468, 771 N.Y.S.2d 670 (2d Dept 2004) (holding that the plaintiff's motion for summary judgment should be granted because the defendant's admission documented in the police report was an admission against interest); Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465 (2d Dept 2003) (summary judgment was proper because the police accident report submitted by the plaintiff contained a statement by the defendant that he had fallen asleep while driving); Abramov v. Miral Corp., 24 AD3d 397, 805 N.Y.S.2d 119, 120 (2d Dept 2005) (summary judgment for the plaintiff was proper because the police accident report contained the defendant's admission immediately following the accident that he observed a pedestrian in the intersection but was unable to stop); Grange v. Jacobs, 11 AD3d 582, 783 N.Y.S.2d 634, 635 (2d Dept 2004) (summary judgment was appropriate where the police accident report contained the defendant's statement that she made an illegal left turn and pulled out in front of the plaintiff's vehicle).
This court finds that the defendant was the sole and proximate cause of the accident. Notwithstanding the fact that the plaintiff's police report is unsworn, the defendant's statement recorded therein that she "had a sneezing fit" when she hit the plaintiff's car constitutes an admission against interest. Ferrara v. Poranski, 88 A.D.2d 904, 450 N.Y.S.2d 596, 597 (2d Dept 1982). This case is factually similar to that of Grange v. Jacobs, supra. In Grange, the defendant's admission that he had fallen asleep while driving constituted an admission against interest, allowing the court to consider the police accident report for summary judgment. The only difference in the present case is that the defendant driver had a "sneezing fit." Therefore, this court grants the plaintiff's cross-motion for summary judgment on the issue of liability.
The courts have long since held that an insurer "who pays claims against the insured for damages caused by the default or wrongdoing of a third party is entitled to be subrogated to the rights which the insured would have had against such third party for its default or wrongdoing." Ocean Accident & Guarantee Corp. v. Hooker, 240 N.Y. 37, 47 (1925). The attempted destruction of an insurer's right to subrogation will not have its intended affect where the insurance company for the defendant, who caused the accident, had, or through reasonable inquiry would have had, notice of the insurer's right of subrogation. Kozlowski v. Briggs, 96 Misc.2d 337, 408 N.Y.S.2d 1001, 1005 (Sup Ct Kings County 1978). Even in circumstances where the insured signs a release agreement, it does not necessarily bar the subrogation rights of the insurer who has paid the property damage. Id. When the insurance company for the tort-feasor party has knowledge of the insurer's rights at the time of the release, then the insurer will not be prevented from enforcing its subrogation rights against the tort-feasor. NY Central Mutual Fire Ins. Co. v. Hildreth, 40 AD3d 602, 835 N.Y.S.2d 409, 413 (2d Dept 2007).
Contrary to the defendant's contention, the plaintiff has demonstrated a genuine issue of material fact as to whether the defendant had actual notice of the plaintiff's subrogation rights at the time of the release. Travelers Property Casualty v. Giorgio, 21 AD3d 1086, 803 N.Y.S.2d 614, 615 (2d Dept 2005) ; Ocean Acc. & Guar. Corp., 240 N.Y. at 46. It is generally held that a "release given to a tort-feasor who has knowledge of the insurer's rights will not preclude the insurer from enforcing its right of subrogation against the wrongdoer." NY Central Mutual Fire Ins. Co. v. Hildreth, 835 N.Y.S.2d at 413. The insured's affidavit states that she "advised [American Transit] that State Farm had taken care of my motor vehicle, but I had out-of-pocket expenses and they agreed to pay me the sum of $2,022.02 for my out-of-pocket expenses." The insured stated further in her affidavit that she "in no way agreed to relinquish the rights of State Farm by accepting $2,022.02 for my out-of-pocket expenses." These statements that are found in the insured's affidavit create an issue of fact as to whether American Transit was notified of State Farm's rights.
The defendant properly argues that the plaintiff failed to prove that it mailed the February 27, 2014 letter to the defendant. There is neither an affidavit from anyone attesting to the actual mailing of the letter nor an information attesting to State Farm's office practices and procedures to ensure proper mailing of the letter. The only proof offered by the plaintiff on the issue of mailing is found in the affirmation of attorney, Jay Seltzer, who has no personal knowledge concerning the mailing of the letter. The Second Department held that proof of mailing "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." NY Presbyterian Hosp. v. Allstate Ins. Co., 29 AD3d 547, 814 N.Y.S.2d 687, 688 (2d Dept 2006). The issue of whether American Transit had actual notice of State Farm's subrogation rights must be proven at trial.
The Court's Determination
The defendant's motion is denied. Issues of fact exist as to whether American Transit was on notice of State Farm's subrogation rights. The plaintiff's cross-motion for summary judgment as to liability is granted against defendants Adri Leasing Corp.
and Margaret Blackmer.
So Ordered.