Mid Atl. Med., P.C. v Victoria Select Ins. Co. (2008 NY Slip Op 51758(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered November 3, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Order modified by providing that defendant’s cross motion to dismiss the complaint is denied; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (5), based upon a Virginia court’s order rescinding the subject insurance policy. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint. Plaintiff appeals.
An objection based on CPLR 3211 (a) (5) must be raised either by motion made before service of the responsive pleading is required or in the responsive pleading (see CPLR 3211 [e]). As defendant did neither, its post-answer cross motion to dismiss should have been denied. [*2]
Turning to plaintiff’s motion for summary judgment, we note that defendant raised no issue below or on appeal with respect to plaintiff’s establishment of its prima facie case, and we therefore do not pass on the propriety of the determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant made the same collateral estoppel argument it proffered in support of its cross motion to dismiss. It submitted a petition commencing an action in a Virginia court seeking a declaratory judgment voiding the subject insurance policy on the ground that the insured made material misrepresentations on his application for insurance including, inter alia, that he resided in, and his car was to be garaged in, Virginia. Defendant further submitted an uncertified order of a Virginia court, dated April 4, 2005, which provided that the subject insurance policy was “rescinded, void ab initio, and of no effect.”
We note at the outset that defendant may not invoke the doctrine of collateral estoppel against plaintiff herein because plaintiff was not a party to the Virginia proceeding, which was commenced by defendant herein against its insured. Prior to the commencement of the Virginia proceeding, plaintiff was assigned the instant claims by two eligible injured persons, neither of whom are the named insured but both of whom were allegedly eligible for benefits under said policy. Plaintiff was therefore not “afforded a full and fair opportunity to contest” the Virginia order, nor was it in privity with one who was (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-487 [1979]). We find, however, that the submission of the aforementioned documents is sufficient to demonstrate a defense based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant has raised a triable issue of fact as to whether there was coverage under the subject insurance policy (see Hernandez v City of New York, 35 AD3d 812, 813 [2006]; Matter of Eagle Ins. Co. v
Singletary, 279 AD2d 56 [2000]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90
NY2d 195 [1997], supra). Therefore, plaintiff’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios, J.P., and Pesce, J., concur.
Golia, J., concurs in a separate memorandum.
Respondent.
Golia, J., concurs in the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
I do not believe this Court can choose to abrogate its responsibility to pass upon the most fundamental and pre-eminent issue to be determined in any litigation, that being whether or not [*3]the plaintiff has established a prima facie case (see Uptodate
Med. Serv., P.C v Lumbermens Mut. Cas. Co., Misc 3d , 2008 NY Slip
Op 51502[U] [App Term, 2d & 11th Jud Dists 2008] [dissenting op by Golia, J.]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Decision Date: August 19, 2008