Farrell v GEICO Ins. Agency, Inc.
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Farrell v GEICO Ins. Agency, Inc. 2012 NY Slip Op 32088(U) July 27, 2012 Sup Ct, Nassau County Docket Number: 12864/11 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIALIIAS PART 31 NASSAU COUNTY THOMAS FARRLL Plaintiff Index No. : 12864/11 Motion Seq. No. : 01 Motion Date: 05/04/12 - against - GEICO INSURANCE AGENCY , INC. Defendant. The following papers have been read on this motion: Papers Numbered Notice of Motion Affidavits and Exhibits Memorandum of Law in O osition Reply Affidavit Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendant moves , pursuant to CPLR 3001 , for an order granting it declaratory judgment declaring that it has no obligation to defend or indemnify plaintiff in connection to an accident which allegedly occurred on or about July 20 , 2008. Plaintiff opposes the motion. Plaintiff has brought the instant action against defendant , his personal auto insurer seeking a declaration that defendant is obligated to defend and indemnify plaintiff in connection to an automobile accident in which he allegedly struck a pedestrian while driving a vehicle that was neither owned by plaintiff, nor insured by defendant. Plaintiff had an insurance policy (Policy # 4072- 59-56- 65) with defendant that was in effect from Januar 31 , 2008 through July [* 2] 2008. Said policy covered plaintiff's 2006 Satum. Plaintiff commenced the instant action with the filing of a Summons and Verified Complaint on or about November 10 2011. See Issue was joined on or about November 30 , 2011. Defendant's Affidavit in Support Exhibit A. See Defendant' s Affidavit in Support Exhibit With respect to the subject accident , it is alleged that , on July 20 , 2008, in or around West 46th Street and 5th Avenue , New York , New York , plaintiff was driving a 2007 Dodg Durango that had been rented from Elrac in Floral Park , County of Nassau , New York. Said Durango had been rented by an individual named Kevin Collins , who was not insured by defendant. On the date of the accident , while plaintiff was driving said rental car , he allegedly struck a pedestrian , Abdul Goffar. According to the Police Accident Report , dated July 20 2008 , Mr. Goffar claims that he was crossing the street when a motorist backed up into him knocking him to the ground and that said vehicle then fled the scene. Mr. Goffar was transported from the scene to Roosevelt Hospital. The vehicle involved in the accident was identified as the aforementioned 2007 Dodge Durango. See Defendant's Affidavit in Support Exhibit F. Mr. Goffar subsequently commenced a lawsuit in Bronx County Supreme Court against Elrac , Kevin Collins and plaintiff. On May 6 , 2009 , two hundred ninety (290) days after the subject accident , plaintiff gave defendant notice of the subject loss. Defendant submits that , on June 3 , 2009, it duly and properly disclaimed coverage to plaintiff. Defendant contends that it disclaimed coverage based upon the fact that its first notice of the subject loss was not given by plaintiff until May 6 , 2009 two hundred ninety (290) days after the subject accident , therefore plaintiff violated defendant's requirement that it be provided timely written notice of any loss. See Defendant's Affidavit in ," ," [* 3] Support Exhibit H p. 7. Defendant argues that plaintiff may not await the service of a Summons and Verified Complaint upon him to notify defendant of the accident. According to the subject insurance policy, plaintiff was required to provide , as soon as possible, written notice to defendant of " potential" claims , not merely a lawsuit that has been commenced and process served on the insured. Defendant asserts that plaintiff's claim of non- liability is insuffcient as a matter oflaw to excuse the delay in notifying GEICO of the potential claim. Defendant further argues that Elrac , as owner of the rental vehicle in question , must provide primar coverage to plaintiff in any event. Defendant submits that " (wJhile EIrac may claim that it does not owe an obligation to defendant or indemnify MR. FARRLL , for the stated reason that ' he is not an authorized driver under the rental contract' , that position has been repeatedly held to be invalid under New York law. New York has long since held that where the renter of a motor vehicle from a rental agency such as Elrac gives the rental vehicle to another person to use , even if that person is not listed as an authorized operator , the vehicle operator is stil entitled to a defense and indemnification up to New York minimum limits for the use of that vehicle under the concept of ' constructive consent' under New York law. Finally, defendant argues that plaintiff, under no circumstances , is entitled to the recovery of any alleged attorneys ' fees. Defendant states (iJt is the rule in New York State that the plaintiff may not recover attorneys fees against defendant to the extent he is successful. Recovery may not be had in an affrmative action brought by the insured to settle his rights under the policy.... The only time an insured can recover in a suit such as this is when he has been cast in a defensive posture by his own insurance company in a suit against him , brought by the insurer , in an effort to free the insurer from its policy obligations. Defendant argues that the right of an insurer to receive written notice in accordance with ," ," [* 4] its policy terms and conditions has been held to be so fudamental that the insurer is not obligated to show prejudice to be able to disclaim liability on such a basis. Defendant adds that (tJhis particular accident date of July, 2008 , predates any amendment to 3420 of the Insurance Law on the issue of notice , and , as such , no prejudice need be demonstrated by the defendant , insurer , to prevail. In opposition to the motion , plaintiff's counsel contends that , on the date of the subject accident , plaintiff was operating the aforementioned rental car in the aforementioned location when an unidentified male ,approached him and stated (yJou hit me with your car , you have to give me money. " Plaintiff's counsel asserts that plaintiff's response to the unidentified male was that they should notify police , whereupon the unidentified male left the scene. Plaintiffs counsel claims that , on May 5 , 2009 , plaintiff was served with a Summons and Verified Complaint for a Bronx County Supreme Cour action in which Abdul Goffar (the unidentified manJ was suing Elrac , Kevin Collns and plaintiff. On May 6 2009 , plaintiff advised defendant of the Bronx County Supreme Cour action. Plaintiffs counsel argues that defendant should be obligated to provide plaintiff insurance coverage " because of Plaintiffs good faith belief in his non- liability excuses his notifying GEICO after being served with the Summons and Complaint." Plaintiffs contends that (uJnder the circumstances of this purorted believed that he was being scared accident , counsel Plaintiff reasonably extorted for money. On July 20 2008 , at West 46 Street and 5th Avenue , City of New York , County of New York and State of New York , the Plaintiff was operating a rental vehicle , with the permission of the lessor , Mr. Kevin Collins when an unidentified , Hispanic male approached Plaintiff and stated: ' you hit me with your car you have to give me money. ' When Plaintiff attempted to call the police , the man immediately fled the scene. Plaintiff had no further opportunity to ascertain any other facts. Quite simply, ," ," [* 5] once the purported accident victim s request for money was denied and that the police were being called , he left the scene. Thus , under these circumstances it was reasonable for Plaintiff to conclude that there was no accident. Plaintiffs counsel argues that " (aJ good faith beliefthat there was no injury may excuse the insured from notifying the insurer about the accident until he becomes aware that there was an injur, provided that the insured' s belief is reasonable under all circumstances. " Plaintiffs counsel submits that " (dJefendant GEICO' s ultimate decision to deny coverage was based on Plaintiff not notifying Defendant GEICO at the time ofthe alleged accident. What was he to notify them of? That an unidentified Hispanic male claimed to have been hurt by him and demanded money only to leave the scene when the police were called? Thus , Defendant GEICO is requiring Plaintiff, and it's (sic) insured , to provide notice based on speculation. This is not reasonable. Conversely, in light of the facts ofthis paricular case , Plaintiffs actions were reasonable. Here , the only way Plaintiff could have known of the claim is when he received notice of a pending lawsuit , whereupon he notified GEICO within two days. In reply to plaintiffs counsel' s memorandum of law in opposition , defendant states is noted that the plaintiff himself offers nothing in opposition to this motion and, rather , relies exclusively upon an attorney s Affirmation. It is axiomatic under New York law that an attorney s Affrmation possesses no first- hand knowledge and , as such , it is probatively valueless in attempting to create a triable issue. Defendant adds (w)hat plaintiff fails to bring to the Cour' s attention is that the plaintiff was not driving a GEICO insured vehicle , but rather an Elrac rental vehicle. At the very least , GEICO could have been in touch with Elrac , who undoubtedly opened a no- fault file with respect to the personal injury claim of the injured claimant , Mr. Goffar. Elrac would have undoubtedly had information relating to this injured person s name , the claimed injury and [* 6] whether any witnesses saw the accident happen. Plaintiff may not avoid his obligations under the GEiCO policy merely because he claims the plaintiff ' left the scene . Of course , the documentar evidence suggests quite the reverse. Annexed to GEICO' s motion for declaratory judgment at Exhibit ' F' is the police accident report completed on the very date of the accident. With respect to the Elrac vehicle driven by plaintiff, FARRLL , it is noted to have ' left the scene . With respect to the injured person , Mr. Goffar , he was found at the accident site and taken from the scene to Roosevelt Hospital in Manattan. Contrary to plaintiff s suggestion that it was he who wanted to call the police , it was actually the injured par, Mr. Goffar who did so.... Contrar to what plaintiff advises the Cour , it is not appropriate to await service of a Sumons and Complaint when plaintiff is alleged to have backed up an automobile into someone at an accident scene , that person then claims personal injur money. Furher , and that person demands it is clear that the only person who sought police intervention was the injured claimant, Mr. Goffar , and not the plaintiff in this case , MR. FARLL." Defendant further submits that "plaintiff does not respond in any way, shape or form to that portion ofthe defendant's motion for declaratory judgment which notes that since the plaintiff was operating an Elrac-owned vehicle , that Elrac must provide a defense and primar coverage to any permissive user of the vehicle.... The conclusion should be drawn that plaintiffs failure to respond to the position that Elrac must provide primar coverage to plaintiff FARRLL , is an acknowledgment of that position. At the outset , the Cour acknowledges the fact that plaintiff, himself, has failed to provide an Affidavit to the Court detailing his version of the events that took place with respect to the subject accident on July 20 2008. The only version of plaintiff s account was provided by plaintiffs attorney in the " Memorandum of Law in Opposition to Defendant' s Motion for an Order Pursuant to CPLR ~ 3001 Granting Declaratory Judgment for Defendant." Additionally, ," [* 7] nowhere in said Memorandum of Law does plaintiffs attorney even indicate what is the basis for the facts and information provided in same. The Memorandum of Law basically constitutes hearsay that is not even affirmed by counsel. Plaintiff relies solely upon the Memorandum of Law , signed , but not affirmed , by his attorney, who was obviously without personal knowledge of the facts. This does not supply the evidentiar motion. See CPLR ~ 3212(b); showing v. Rotuba Extruders necessar to successfully resist the Ceppos 46 N. Y.2d 223 , 413 N. Y.S.2d 141 (1978). There is no representation made in the Memorandum of Law that the attorney has any personal knowledge of the relevant facts herein. Therefore , the Memorandum of Law is without evidentiar value or Roche 595 (1980); effect. v. v. & Carton Mfg. Co. v. See Zuckerman Hearst Corp., A Corp, City of New York 49N. Y.2d 557 , 427 N. Y.S. 53 N. Y.2d 767 , 439 N. Y.S.2d 352 (1981); Columbia Ribbon 42 N. Y.2d 496 398 N. Y.S.2d 1004 (1977). Accordingly, the only evidence before this Court is the Police Accident Report in which it is stated that plaintiff backed into the pedestrian, knocking the pedestrian to the ground and See then fled the scene. Defendant's Affidavit in Support Exhibit F. Further evidence provided by defendant to demonstrate plaintiffs knowledge of the July 20 , 2008 incident is plaintiffs response to defendant' s Combined Demands which provided the following answer Plaintiff does not possess any statements made by defendant other than that which plaintiff previously Goffar testified at an examination before trial in the action entitled v. Elrac, et al. which in sum and substance is ' You hur me. You give me money ' where such statement was made by the purported plaintiff Goffar accident." See on or about July Defendat's Affidavit in 2008 , at the time and place of the alleged Support Exhibit E 2. Therefore , the only evidence provided to this Cour indicates that plaintiff was aware of the subject accident on the date it allegedly occurred , July 20 , 2008. As such , defendant has proven that plaintiff failed to advise defendant of the subject accident until two hundred ninety (290) days after the occurence. In (/ [* 8] turn , plaintiff violated defendant's insurance policy requirement that it be provided timely written notice of any loss and , therefore , defendant was legally entitled to disclaim coverage to plaintiff for the subject accident. Additionally, as defendant indicated , plaintiffs Memorandum of Law failed address defendant' s argument that since the plaintiff was operating an Elrac-owned vehicle , that Elrac must provide a defense and primar Insurance Company v. coverage See Lancer to any permissive user of the vehicle. Republic Franklin Insurance 304 A.D.2d 794 , 759 N. Y.S.2d Company, 734 (2d Dept. 2003). As plaintiff has failed to create any issue which would prevent this Cour from granting defendant' s instant motion , said motion is hereby GRANTED. And it is fuher ORDERED that defendant has no obligation to defend or indemnify plaintiff in connection to the underlying automobile accident which allegedly occured on or about July 20 2008. And it is further ORDERED that the Verified Complaint in the instant matter is hereby dismissed. This constitutes the Decision and Order of this Cour. ,!ENISE ER, A. Dated: Mineola , New York July 27 2012 ENTERED JUL 3 1 2012 NAa AU COUNtY COUNTY CLERK" OFftCE
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