Ideal Med. Supply v Mercury Cas. Ins. Co.
Annotate this CaseDecided on March 12, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Torres, JJ
570607/12.
Ideal Medical Supply, Plaintiff-Respondent,
against
Mercury Casualty Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered April 17, 2012, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Donald A. Miles, J.), entered April 17, 2012, affirmed, without costs.
A related Supreme Court action brought by the defendant-insurer against various medical providers resulted in a declaration that defendant was entitled to deny all no-fault claims arising from injuries allegedly sustained by plaintiff's assignor (Cuffie) in the underlying July 2, 2008 motor vehicle accident. Since the plaintiff medical supplies provider was not a party to the declaratory judgment action it is not bound by Supreme Court's determination, as it did not have a full and fair opportunity to contest the issues in that proceeding (see Gilberg v Barbieri, 53 NY2d 285, 291 [1981]). Although plaintiff's assignor was a named party in the prior action, plaintiff cannot be deemed to be in privity with its assignor, since the declaratory judgment action was commenced after the assignment (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Schoenfeld, J. (concurring).
In light of the Court of Appeals' holding in Gramatan Home Investors Corp. v Lopez, 46 NY2d 481 (1979), I join my colleagues in voting to affirm the order denying summary judgment to the defendant-insurer. Considerations of due process prohibit binding a party to the result of an action in which that party has not been given an opportunity to be heard. I write separately to [*2]acknowledge that the outcome reached today does not serve to promote the purposes of this State's no-fault law to provide a less costly, more efficient automobile accident reparation system and to ease court congestion (see Montgomery v Daniels, 38 NY2d 41, 50-51 [1975]).
As (now retired) Justice Golia properly recognized in closely analogous circumstances, no-fault actions do not fit squarely within the Gramatan rule, given "the unique nature and reality of the assignment of claims for first-party benefits under the Insurance Law and the no-fault regulations of this State" (Magic Recovery Med. & Surgical Supply Inc. v State Farm Auto. Ins. Co., 27 Misc 3d 67, 69 [dissenting opn][2010]). That being so, and in view of the prior Supreme Court judgment declaring that plaintiff's assignor and the assignee-providers named as defendants in that action "are not entitled to first-party benefits" stemming from the subject motor vehicle accident due to the assignor's "material misrepresentations in the procurement of the insurance policy," it is not unreasonable to say that the denial of summary judgment dismissing this assignee-provider's claim tends to exalt form over substance, delaying the seemingly inevitable dismissal of the claim until after trial. Nonetheless, on balance, I feel compelled to adhere to the rule set forth in Gramatan without a signal to the contrary from a higher appellate authority. Lastly, and parenthetically, it is noted that in the event the plaintiff-assignee does not ultimately succeed against defendant on the no-fault claim, plaintiff could seek redress against the assignor under the clear terms of the assignment of benefits form.
Decision Date: March 12, 2013
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