MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
PRESENT: :
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Marshall & Marshall, PLLC (Naim M. Peress of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered January 20, 2016. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
Plaintiff commenced this action on September 12, 2013 to recover assigned first-party no-fault benefits for medical services that it had provided as a result of a motor vehicle accident that had occurred on June 4, 2012. The injured party, Gerard Jean-Baptiste, signed an assignment of benefits to plaintiff on December 7, 2012. Subsequent to the assignment of benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) commenced a proceeding against Gerard Jean-Baptiste and Moise Pierre-Louis in the Supreme Court, Kings County, for declarations that Gerard Jean-Baptiste is the de facto owner of the vehicle which was involved in the June 4, 2012 accident and that MVAIC was not liable for coverage for any no-fault claims for services rendered to Gerard Jean-Baptiste. MVAIC moved in the Supreme Court, pursuant to CPLR 3215 (a), for a default judgment against Gerard Jean-Baptiste and Moise Pierre-Louis. By order dated November 2, 2015, the Supreme Court granted MVAIC's motion and declared that Gerard Jean-Baptiste is the de facto owner of the vehicle which was involved in the June 4, 2012 accident and that MVAIC was not liable for coverage for any no-fault claims for services rendered to Gerard Jean-Baptiste.
On or about September 1, 2015, plaintiff moved for summary judgment in the Civil Court and MVAIC cross-moved for summary judgment dismissing the complaint on the ground that Gerard Jean-Baptiste is the de facto owner of the vehicle which was involved in the June 4, 2012 accident. Annexed to its reply affirmation submitted in further support of its cross motion, MVAIC annexed a copy of the order from the declaratory judgment action and argued that, in light of that order, MVAIC was entitled to summary judgment dismissing the complaint. By order entered January 20, 2016, the Civil Court granted defendant's cross motion. We reverse.
Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before MVAIC had commenced the Supreme Court declaratory judgment action. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 54 Misc 3d 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Defendant argues that, even in the absence of a judicial declaration, the order granting defendant's cross motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff's assignor was the de facto owner of the vehicle. However, the evidence annexed to defendant's moving papers demonstrates the existence of a triable issue of fact as to whether plaintiff's assignor was an owner of the vehicle.
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied. PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: March 01, 2019
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