Zagoria v Winget
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Zagoria v Winget 2010 NY Slip Op 33893(U) December 6, 2010 Sup Ct, NY County Docket Number: 150028/09 Judge: Carol R. Edmead Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/08/2010 1] INDEX NO. 150028/2009 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 12/08/2010 SUPREME COURT OF THE STA E OF NEW YORK - NEW YORK COUNTY HON. CAROL ED EAD PRESENT: PART 3J - justice Is o lJ ~;:/a 7 INDEX NO. ~,..., -v-. I ;,, '-1/10 MOTION DATE ;:JC{X: lf=/)tJz_,, MOTION SEQ. NO. .. '.. MOTION CAL. NO. , The following papers, numbered 1 to - - - + were read on this motion to/for - - - - - - PAPERS NUMBERED Notice .. en z 0 en <t w a: " wz - (.) i== ~ en-' :::> .... .., 0 0 u. ~w c :c w~ a: a: a: 0 ti:! w a: > .... ...I :::> u. ~ (.) w Q. en w a: ~ w en u. of Motion/ Order to Show Cause Answering Affidavits - Exhibits - ffidavits - Exhibits ... ---......-+----------- ·.Replying A f f i d a v i t s - - - - - - - - - + - - - - - - - - - - - Cioss ¢Motion: D Yes Upon the foregoing papers, it is ordered tha this motion In this action alleging legal malprac ice and to recover on a judgment, defendants Winget, Russotti & Shapiro, LLP ("WRS"), Cliffor H. Shapiro and William P. Hepner (collectively "WRS") move to reargue their cross-motio for summary judgment. Factual Background In October 2003, Plaintiff Steven A Zagoria ("Zagoria") tripp~d and fell while he was leaving a restaurant owned by nonparty Yo k Specialty Food Inc.' s ("York"), and engaged WRS to pursue a claim against York. WRS noti ed York of Zagoria's injuries, and requested York to immediately forward the letter to York's in urance carrier. WRS also requested York to notify WRS of the identity of that carrier. York g ve notice of the accident to Tower Insurance Company of New York ("Tower"), but did ot provide WRS with the identity of that carrier. York commenced a declaratory jud ment action against its insurer Tower and Zagoria, seeking a judgment declaring that Tower w s obligated to defend and indemnify York. On appeal of a decis1on denying Tower's sum ary judgment motion, the First Department dismissed York's complaint, holding that York's noti e to Tower was untimely, in that York "became . aware of the claimant's accident within thre days, but did not notify Tower of the possibility of a claim until eight months lat ¬!.'? WRS obtained a jury verdict agains York in favor of Zagoria, and Zagoria demanded that <t u z 0 ~ 0 J.S.C. ~ n SUBMIT ORDER/JUDG. n SETTLE ORDER /JUDG. [* 2] Tower pay the judgment pursuant to Insura ce Law § 3420. Tower denied the demand on the ground that it had obtained a declaratory ju gment determining that it was not obligated to pay any recovery, due to untimely notice. Zagoria then commenced this actio , asserting that Tower is obligated to pay the judgment, based on Insurance Law § 3420, hich enables an injured party to sue an insurance company directly after the injured party has obtained, and attempted to collect on, a judgment. He further claimed legal malpractice agains WRS. Zagoria then moved for summary ju gment on his complaint, and the defendants all cross.moved to dismiss the complaint. By Order dated September 22, 2010 the Court denied plaintiffs motion, granted summary judgment in favor of Tower, and enied summary judgment to WRS. The Court stated, in relevant part as to WRS as follows: The final issue to consider is whether Zagoria's claim in the complaint, that defendant attorneys' failure to pro vi e Tower with adequate notice of the accident, can support his claim for legal malpracti e. Although the parties do not address this issue, in order for the defendant attorneys to ake a prima facie showing of entitlement to summary judgment, they must dem nstrate that there is no material issue of fact regarding the merit of any of the clams raised in the complaint. ... The issue of adequate notice to Tower, pursuant o Insurance Law 3420 is raised in the complaint. Complaint, ~81. The defendant attorneys do ot allege, much less bring forth evidence, that they provided Tower with written notice f the accident. Rather, they point to the fact that Tower was informed of the accident However, that information may have been provided orally. Oral notice is insufficient to eet the requirements of Insurance Law §3420, which provides specifically that notice by injured party must be in writing. Insurance Law §3420 (a)(3). Having failed to show that they provided written notice to Tower, and in view of Tower's evidence that there as no such evidence, the defendant attorney's have not demonstrated entitled to summ judgment dismissing the Complaint. WRS argues that the Court overloo ed part of the record (Exhibit 10 to plaintiffs motion for summary judgment) evidencing that Yo k provided Tower with written notice of the accident on October 8, 2003. Such notice to Tower as provided at the instruction of WRS (Exhibit 8 to plaintiffs motion). Therefore, since Towe was provided with written notice, WRS is entitled to summary judgment. In opposition, plaintiff argues that RS has again failed to show that it provided written notice to Tower on plaintiffs behalf. Rath r, WRS relies on the fact that York provided written notification of plaintiffs accident to Tower and claims, without any justification, that it was at the instruction of WRS. Insurance Law §3 20 states that written notice to the insurance company be made by or on behalf of the inj red person. It is clear that WRS never provided written notice of plaintiffs accident to To er. Further, although WRS relies on York's written notice of plaintiffs accident to Tower, WR does not present any evidence that York submitted the notice to Tower at the request of WRS. Merely pointing out that York's notice to Tower age 2 of 4 [* 3] included WRS's letter to York does not lea to the conclusion that York submitted notice to Tower on behalf of plaintiff. WRS failed t preserve and pursue plaintiffs Insurance Law § 3420 claim against Tower. Not only did RS fail to provide written notice of plaintiffs claim to Tower, but WRS also failed to assert a c oss-claim based on Insurance Law §3420 on behalf of plaintiff in a Declaratory Judgment actio which prevented plaintiff from being able to collect on the judgment from Tower and from an i crease in the past and future pain and suffering award that the Appellate Division would have dir cted following an appeal of the verdict in the York Lawsuit. In reply, WRS argues that York pro ided written notice to Tower the instruction of the WRS pursuant to Insurance Law §3420, w ich specifically states that written notice to the insurance company be made by or on behal of the injured person. On or about September 3, 2003, the same day plaintiff retained WRS, WRS instructedYork to notify its carrier of the accident on behalf of the plaintiff. On Sept mber 18, 2003, York's agent, A Plus Coverage, Inc., submitted a written fax to Tower's claims d partment including a General Liability Loss Notice and WRS's letter, as written notice of the a cident to Tower. This was obviously done on behalf of plaintiff, at the instruction of WRS (ind d the accident occurred in February 2003 and was not reported until two weeks after WRS w retained) and constitutes written notice of the accident. Plaintiffs assertion that this doe not qualify as notice to Tower on behalf of plaintiff, is incorrect and the two cases cited by plai tiff are inapposite. Discussion A motion for leave to reargue unde CPLR 2221, "is addressed to the sound discretion of the court and may be granted only upon as owing 'that the court overlooked or misapprehended the facts or the law or for some reason mist kenly arrived at its earlier decision"' (William P. Pahl Equipment Corp. v Kassis,182 AD2d 2 [I st Dept] Iv. denied and dismissed 80 NY2d 1005, 592 NYS2d 665 (1992], rearg. deni d 81 NY2d 782, 594 NYS2d 714 (1993]). Reargument is not designed to afford the u successful party successive opportunities to reargue issues previously decided (Pro Brokerage Home Ins. Co., 99 AD2d 971, 472 NYS2d 661) or to present arguments different from those ori inally asserted (Foley v Roche, 68 AD2d 558, 418 NYS2d 588 [1st Dept 1979] ("A party cann t raise questions, advance new arguments, or assume a position inconsistent with that taken on t .e original motion"); William P. Pahl Equipment Corp. v Kassis, supra). On reargument th, court's attention must be drawn to any controlling fact or applicable principle of law which was nJisconstrued or overlooked (see Mack/owe v Browning School, 80 AD2d 790, 437 NYS2d 11 [1st Dept 1981]). 1n light ofWRS's argument that this Court overlooked certain facts presented in the record, the Court grants reargument. Howfver, upon reargument, the Court adheres to its earlier ¢ determination. WRS does not dispute this Court'sI olding that Insurance Law §3420 "permits an injured party to collect from an insurance compan even if the insured failed to give proper notice of the accident, [but] in order to do so, the injure·I party must have given written notice of the accident to the insurer." (Decision, page 7). ¢ WRS's first contention, that the Co~rt overlooked part of the record evidencing that York provided Tower with written notice of the fLCcident on October 8, 2003, lacks merit. This Court acknowledged such notice (Decision, pagel3), and noted that the First Department held that York 1 !Page 3 of 4 [* 4] requirem~s insuran~e failed to comply with the notice of the policy. The First Department dec1s1on addressed the October 8, 2003 notice by York, statmg that the eight month delay from the time York "became aware the claimant's accident" in February 2003 vitiated the policy. In other words, the October 8, 2003 notice froif York was untimely. Thus, in order for Zagoria to recover, Zagoria must have given written n1!ice of the accident, and it was uncontested that Zagoria did not dispute the attestation from Tower's vice president, that Tower did not receive any written notice from Zagoria. WRS's se¢ond contention that York's notice to Tower was provided at the instruction of WRS is incont·equential, since York's notice was deemed untimely. Therefore, WRS failed to establish, as a ma ter of law, that proper (timely) notice was given to Tower by the injured party (Zagoria), or on .behalf of the injured party. Further, the exhibits WRS relies upon, i.e., its instruction to Yor~ to notify York's insurer, and the subsequent notice to Tower on October 8, 2003 fail to demonstrate that proper (timely) notice was given to Tower by the injured party (Zagoria), or on behalf the insured party. Conclusion I pf Based on the foregoing, it is hereby . ORDERED that the motion by defetdants Winget, Russotti & Shapiro, LLP, Clifford H. Shapiro and William P. Hepner for leave to reargue is granted, and upon reargument, the Court adheres to its earlier determination. This constitutes the decision and orfer of the Court. Dated /). .. (,, ¢ JO i ENTER: Check one: CJ FINAL DISPOSITION Check if appropriate: / HON. CAROL EDMEAD 6 NON-FINAL DISPOSITION o DO NOTrOST page 4 of 4 o REFERENCE
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