Fedorov v Hussain

[*1] Fedorov v Hussain 2007 NY Slip Op 52327(U) [17 Misc 3d 1138(A)] Decided on December 4, 2007 Supreme Court, Kings County Starkey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 4, 2007
Supreme Court, Kings County

Romuald R. Fedorov, Bella Sagalina Fedorov, Ilya Fiterman (f/k/a Ilya Yashtylov) and Yelena Fiterman (f/k/a Yelena Gurevich), Plaintiffs,

against

Tarriq Hussain and Progressive Northeastern Insurance Company, Defendants.



28891/2006



For the Plaintiff(s):

Lester B. Herzog, Esq.

1729 East 15th Street

Brooklyn, New York 11229

For the Defendant(s): Tarriq Hussain

Della Jacono & Associates

310 Old Tarrytown Road

White Plains, New York 10603

For the Defendant(s): Progressive Northeastern Insurance Company

Buratti, Kaplan, Mccarthy & McCarthy

One Executive Boulevard, Suite 280

Yonkers, New York 10701

James G. Starkey, J.

Defendant Progressive Northeastern Insurance Company (hereinafter "Progressive") has moved for dismissal of all plaintiffs' complaint pursuant to CPLR §3211(a)(3) on the ground that plaintiffs do not have standing to sue absent a judgment against Progressive's insured. Alternatively, Progressive moves pursuant to CPLR § 2001 to amend its answer to correctly identify General Obligations Law §15-108 as a defense, and based upon such correction, for [*2]dismissal of plaintiffs Fedorovs' complaint pursuant to CPLR §3211(a)(1) and (a)(5) because those plaintiffs executed a general release.

All plaintiffs have cross moved for summary judgment on the issue of liability against defendant Tarriq Hussain (hereinafter "Hussain"). Further, plaintiffs Fedorov cross move for dismissal of defendant Hussain's defense — labeled as an affirmative defense — that the complaint does not state a cause of action, as well as dismissal of his defense of release. Lastly, plaintiffs Fedorov cross move for dismissal of defendant Progressive's affirmative defense of release (based upon the claim that it had been waived).

Defendant Hussain also cross moves for dismissal of plaintiffs Fedorovs' complaint pursuant to CPLR §3211(a)(1) and (a)(5) on the basis of the defense of release.

The parties appeared in Part 6 of this Court for oral argument on the motion on September 5, 2007 and decision was reserved.

FACTS AND PROCEDURAL BACKGROUND

On Saturday, December 3, 2005, Plaintiff Romuald R. Fedorov (hereinafter "Fedorov") was a passenger in the vehicle operated by co-plaintiff Ilya Fiterman (hereinafter "Fiterman"). According to the police accident report, at approximately 7:45 P.M. plaintiff Fiterman attempted to make a left hand turn from Ocean Parkway onto the service road when his vehicle was struck by the vehicle owned and operated by defendant Hussain, which was proceeding in the opposite direction on Ocean Parkway. At the scene, plaintiff Fiterman stated that he had a green arrow permitting his left hand turn, and defendant Hussain stated that he did "not recall anything." An independent witness, Lev Ternovski, was listed on page 2 of the police accident report. Two days later, defendant Fedorov commenced treatment for his injuries as a result of the accident. These injuries were to his neck, back, and left knee.

On December 9, 2005, Daniel Bubbico, a representative of defendant Progressive — the automobile insurance carrier for defendant Hussain — was assigned to handle plaintiff Fedorov's claim. He immediately contacted plaintiff Fedorov and arranged to meet with him at his residence. The next day, Mr. Bubbico appeared at plaintiffs Fedorovs' residence and met with plaintiff and his wife, co-plaintiff Bella Sagalina Fedorov. During this meeting, Mr. Bubbico presented the Fedorovs with a general release form by means of which the Fedorovs purportedly accepted a compromise offer as to all their claims against defendant Hussain for the sum of $500. Mr. Bubbico filled in portions of this general release,[FN1] plaintiffs signed the document and Mr. Bubbico signed as a witness. A settlement check was thereafter sent to plaintiff Fedorov, but apparently never cashed.

On December 14, 2005, plaintiff Fedorov had a series of MRI's performed on his back and left knee. The left knee MRI revealed, inter alia, a horizontal/oblique meniscapsular tear of the posterior horn of the medial meniscus. Plaintiff Fedorov continued treatment thereafter for his back and knee, and retained the services of an attorney.

On September 25, 2006, plaintiff Fedorov and plaintiff Fiterman, as well as their respective spouses, filed a summons and complaint commencing this action. The complaint alleges: 1) a cause of action for negligence by plaintiff Fiterman against defendant Hussain; 2) a [*3]cause of action for negligence by plaintiff Fedorov against defendant Hussain; 3) a cause of action for fraud and misrepresentation by plaintiffs Fedorov against defendant Hussain; 4) a cause of action for fraud, misrepresentation, mutual mistake as well as violations of General Business Law § 349 and Insurance Law § 2601 by plaintiffs Fedorov against defendant Progressive; 5) a cause of action for violations of General Business Law § 349 and Insurance Law § 2601 by plaintiffs Fiterman against defendant Progressive; 6) a cause of action by Yelena Fiterman against both defendants for loss of consortium; and 7) a cause of action by Bella Sagalina Fedorov against both defendants for loss of consortium. On October 23, 2006, defendant Hussain served an answer to the complaint,[FN2] and on October 24, 2006 defendant Progressive served an answer to the complaint.[FN3]

LAW AND APPLICATION

The court for purposes of a motion pursuant to CPLR § 3211 must accept the factual allegations contained in the complaint as true. See Becker v. Schwartz, 46 NY2d 401, 408, 413 NYS2d 895, 386 NE2d 807 (1978). The pleading must also be afforded a liberal construction in making a determination as to whether the facts as alleged fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 87-8, 614 NYS2d 972, 638 NE2d 511 (1994).

In support of its motion to dismiss the fourth, fifth, sixth and seventh causes of action the only ones against Progressive defendant Progressive annexes a copy of the insurance agreement between defendants Progressive and Hussain, as well as the purported release and an affidavit of Mr. Bubbico. Based on these documents, defendant Progressive urges the court to dismiss the complaint on the ground that defendant has established that its actions taken in obtaining the release, as well as the release itself, were proper in all respects. Defendant Progressive also urges that plaintiffs do not have standing to sue defendant Progressive absent a judgment against its insured, defendant Hussain. [*4]

The first cause of action (and the fourth cause of action overall) alleges common law fraud in the execution of the release, as well as statutory violations for unfair business practices.[FN4] Fraud in the execution of a document, as alleged by plaintiffs Fedorov, arises where a party did not know the nature or the contents of the document being signed, or the consequences of signing it, and was nonetheless misled into doing so. See Whitehead v. Town House Equities, Ltd., 8 AD3d 367, 368, 780 NYS2d 15 (2nd Dept. 2004). Plaintiffs have alleged the necessary elements of representation of a material existing fact, falsity, scienter, reliance and injury. See Urquhart v. Philbor Motors, Inc., 9 AD3d 458, 780 NYS2d 176 (2nd Dept. 2004). Further, the affidavits of plaintiff Fedorov and Mr. Bubbico offer radically conflicting versions of the circumstances and the representations made by Mr. Bubbico at the Fedorovs' residence on December 10, 2005, creating a material issue of fact concerning the validity of the general release signed by plaintiffs Fedorov. These issues require resolution by a jury. See Lopez v. 121 St. Nicholas Avenue H.D.F.C., 28 AD3d 429, 814 NYS2d 174 (2nd Dept. 2006).

The second cause of action against defendant Progressive (and the fifth cause of action overall) asserted by plaintiffs Fiterman does not allege common law fraud, but merely relies upon the aforementioned claimed statutory violations. It is therefore dismissed for the reasons set forth in footnote four, supra .

The final causes of action against defendant Progressive (and the sixth and seventh causes of action overall) are for loss of consortium against both defendants. Since plaintiffs Yelena Fiterman and Bella Sagalina Fedorov do not have a judgment against defendant Hussain, they do not have standing to assert this cause of action against defendant Progressive. See Lang v. Hanover Ins. Co., 3 NY3d 350, 787 NYS2d 211, 820 NE2d 855 (2004); N.Y.S. Ins. Law § 3420. Therefore, the sixth and seventh causes asserted by plaintiffs Yelena Fiterman and Bella Sagalina Fedorov as against defendant Progressive are severed and dismissed.

Defendant Progressive also moves pursuant to CPLR § 2001 to amend its answer to include a defense pursuant to GOL §15- 108, since the original answer misstated the correct section as previously indicated in footnote three, supra . CPLR § 3025(b) provides that leave to amend shall be freely given upon such terms as may be just. However, if the proposed amendment patently lacks merit, leave should be denied as a matter of law. See Whitney-Carrington v. NY Methodist Hosp., 289 AD2d 326, 734 NYS2d 490 (2nd Dept. 2001). In this case, the defense asserted by defendant Progressive clearly lacks merit. The plain language of the release appears to release only defendant Hussain, as it neither specifically names defendant Progressive as a "releasee," nor extend to defendant Hussain's heirs, executors, [*5]administrators, successors and assigns.

In any event, defendant Progressive and defendant Hussain are not related in the manner defined in GOL § 15-108, since their respective actions did not result in the "same injury" to plaintiffs Fedorov. That is to say, the injury allegedly caused by defendant Progressive, i.e., the loss of certain legal rights, is different from the physical injury allegedly caused by defendant Hussain's negligence in the automobile accident. See Keeley v. Tracy, 301 AD2d 502, 753 NYS2d 519 (2nd Dept. 2002); cf. Gonzalez v. Jacoby & Meyers, 258 AD2d 560, 685 NYS2d 461 (2nd Dept. 1999). Since defendants Progressive and Hussain do not share responsibility for the same alleged injury to plaintiffs Fedorov, defendant Progressive cannot claim the benefit of GOL § 15-108. Therefore, the defendant Progressive's motion to amend the answer to allege this affirmative defense is therefore denied.

All plaintiffs' cross move for summary judgment pursuant to CPLR § 3212 on the issue of liability as against defendant Hussain. Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. See Giuffrida v. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. See Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. See Alvarez v. Prospect Hospital, supra , at 324.

Plaintiffs have attached an affidavit from Lev Ternovski, the independent witness, along with affidavits of plaintiffs Fiterman and Fedorov. Each affidavit states that 1) the Fiterman vehicle was making a left hand turn onto Ditmas Avenue from Ocean Parkway with a green arrow and the right of way and 2) defendant Hussain, proceeding in the opposite direction on Ocean Parkway, passed a red light and collided into the right side of the Fiterman vehicle.

In opposition, defendant Hussain's counsel submits an affirmation claiming that summary judgment is premature at this juncture as there has been no discovery.

As to plaintiffs Fedorov, the questions of fact adverted above concerning the purported release (which purported release states that it is "in full compromise of a doubtful and disputed claim as to both questions of liability and ... damages ...") precludes an order granting summary judgment. But plaintiffs Fiterman have established their prima facie entitlement to summary judgment on the issue of liability. Sufficient evidence has been presented that defendant Hussain violated Vehicle & Traffic Law § 1111, and that such violation was the proximate cause of the accident. See Masteiasevici v. Dawn, 34 AD3d 651, 825 NYS2d 502 (2nd Dept. 2006). Defendant Hussain has failed to raise a triable issue of fact since an attorney's affirmation is not based on personal knowledge and has no probative or evidentiary significance. See Warrington v. Ryder Truck, 35 AD3d 455, 826 NYS2d 152 (2nd Dept. 2006). This is particularly true when such an affirmation merely hopes that further discovery will reveal the existence of a triable issue of fact. See Lambert v. Bracco, 18 AD3d 619, 795 NYS2d 662 (2nd Dept. 2005); Neryaev v. Solon, 6 AD3d 510, 775 NYS2d 348 (2nd Dept. 2004). Therefore, the cross motion of plaintiffs Fiterman for summary judgment is granted as to defendant Hussain, and the cross motion of plaintiffs [*6]Fedorov is denied.

As to the motion of plaintiffs Fedorov for a dismissal of the affirmative defenses of release as alleged by both defendants, the motion is moot as to defendant Progressive since, as noted above, defendant Progressive's assertion of that defense is without merit. As to defendant Hussain, plaintiffs Fedorov have failed to establish that the execution of the general release was, as claimed, due to a "mutual mistake" of the parties, a pre-requisite to avoidance of the release. See Verstreate v. Cohen, 242 AD2d 862, 662 NYS2d 337 (4th Dept. 1997); Mangini v. McClurg, 24 NY2d 556, 301 NYS2d 508, 249 NE2d 386 (1969). Specifically, plaintiffs have failed to establish that the parties to the release labored under a mistaken belief as to the non-existence of a presently existing injury, as opposed to the consequences or sequella of a then known injury. See Verstreate v. Cohen, supra ; Mangini v. McClurg, supra . At the time of execution of the release, plaintiff admitted telling Bubbico that he "saw a doctor a few days earlier regarding my complaints about my...left knee." An MRI of this knee taken after execution of the purported release revealed a more serious injury than initially believed by plaintiff, to wit: a meniscus tear. Although plaintiff never cashed the settlement check, the executory nature of the release is not dispositive. See Calavano v. New York City Health & Hospitals, 246 AD2d 317, 667 NYS2d 351 (1st Dept. 1998). Therefore, that part of plaintiffs Fedorovs' cross motion seeking a dismissal of defendant Hussain's defense of release on the grounds of mutual mistake is denied.

As to the motion of plaintiffs Fedorov to dismiss the defense of release on the grounds of fraud in the execution,[FN5] as noted above, the affidavits of plaintiff Romuald R. Fedorov and Mr. Bubbico on behalf of defendant Progressive raise issues of material fact concerning execution of the release. That motion is therefore denied. This conclusion is also dispositive of the motion by defendant Hussain to dismiss the complaint of plaintiffs Fedorov on the basis of the alleged release.

Defendant Hussain also seeks a severance of the claims of plaintiffs. Since liability has been determined as to plaintiffs Fiterman, and the issue of the validity of the release are central to plaintiffs' Fedorovs' remaining claims,[FN6] they are severed from the claims of plaintiffs Fiterman pursuant to CPLR §603.

CONCLUSION

Plaintiffs Fiterman are granted summary judgment on the issues of liability as against defendant Hussain. Plaintiffs Fedorov are denied summary judgment on the issues of liability as against defendant Hussain based upon the fact issue in connection with the purported release. Plaintiffs Fedorov are also denied summary judgment dismissing the affirmative defense of release as against defendant Hussain.

Defendant Progressive is granted summary judgment as to the fifth, sixth and seventh [*7]causes of action alleged by plaintiffs. Defendant Progressive is granted summary judgment on the fourth cause of action to the extent that the cause of action is predicated upon violations of General Business Law §349 and Insurance Law §2601, and otherwise denied.

Defendant Hussain's cross motion seeking a dismissal of plaintiffs Fedorovs' complaint is denied. Defendant Hussain's cross motion seeking severance pursuant to CPLR §603 is granted.

This constitutes the decision and order of the court. Defendant Progressive is directed to settle Order on notice.

____________________________

J. S. C. Footnotes

Footnote 1: Mr. Bubbico filled in the claim number, the names of the releasors, the numerical amount of consideration, the releasee insured's name, the date of loss and location of the accident.

Footnote 2: Defendant also served an amended answer to the complaint on or about November 5, 2006, raising for the first time the affirmative defense of release. The amended answer appears to have been timely served in accordance with CPLR § 3025(a), and therefore the defense was not waived by defendant Hussain.

Footnote 3: The answer of defendant Progressive states as a seventh affirmative defense that the claim of plaintiff Romuald Federov is barred by §5-108 of the General Obligations Law, which does not exist. It is for this reason defendant Progressive moves to amend its answer to correctly reflect GOL §15-108(a), reads in relevant part as follows:

"Effect of release of or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest."



Footnote 4: To the extent that this cause of action relies upon violations of General Business Law

§349 and Insurance Law §2601, the cause of action must be dismissed. In the first instance, there is no evidence of the consumer-orientated, deceptive conduct aimed at the public at large that General Business Law § 349 is designed to address. See Zawahir v. Berkshire Life Insurance Company, 22 AD3d 841, 842, 804 NYS2d 405 (2nd Dept. 2005). Insofar as Insurance Law

§2601 is concerned, it is settled that the statute does not authorize a private cause of action. Ibid. See also Bettan v. GEICO General Insurance Company, 296 AD2d 469, 745 NYS2d 545 (2nd Dept. 2002), aff'd, 99 NY2d 552, 754 NYS2d 204, 784, NE2d 77 (2002).

Footnote 5: The third and fourth causes of action allege fraud against defendant Hussain and Progressive, respectively. The third cause of action specifically alleges that Progressive was acting as the agent and representative of defendant Hussain when procuring the release.

Footnote 6: If plaintiffs Fedorov are successful in voiding the release at trial, their damages claims shall proceed. If plaintiffs Fedorov are unsuccessful in voiding the release, all their remaining claims shall be dismissed at trial.