Yong Soon Oh v American Bankers Ins. Co. of Florida
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Yong Soon Oh v American Bankers Ins. Co. of Florida 2018 NY Slip Op 31837(U) August 2, 2018 Supreme Court, New York County Docket Number: 154835/2017 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 154835/2017 [*FILED: NEW YORK COUNTY CLERK 08/02/2018 04:15 PM 1] NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH IAS MOTION 32 Justice --------------------------------------------------------------------------------X INDEX NO. 154835/2017 YONG SOON OH Plaintiff, MOTION DATE -v- MOTION SEQ. NO. 001 AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA C/O ASSURANT GROUP, DECISION AND ORDER Defendant. -------------·--------------·----------------------·--·--·--·--------·--·--------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 Determine scope of deposition were read on this motion to/for This is an action pursuant to Insurance Law§ 3420(a) to collect a judgment obtained against Hua Jin. Plaintiff fell on a sidewalk in Queens and broke her wrist; she sued Mr. Jin, alleging he owned the property and was negligent in maintaining the sidewalk. An insurance company provided a defense t<i Mr. Jin pursuant his homeowner's policy. In the answer, Mr. Jin admitted to ownership of the property. Mr. Jin never appeared for a deposition and was precluded from testifying at trial. After the note of issue was filed, Jin's counsel sought to amend the answer to deny ownership at the time of the accident. The Supreme Court, Queens County allowed 15483512017 OH. YONG SOON vs. AMERICAN BANKERS INSURANCE Motion No. 001 1 of 4 INDEX NO. 154835/2017 [*FILED: NEW YORK COUNTY CLERK 08/02/2018 04:15 PM 2] NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/02/2018 the amendment and sua sponte made it a conditional order of preclusion, giving Mr. Jin another opportunity to appear for a deposition. The Appellate Division, Second Department reversed, finding that there was no good basis to allow the amendment and that it was improper to remove the preclusion. Therefore, Jin was stuck admitting ownership of the property. Instead of sticking it out and appearing to contest damages, Jin's attorneys moved to be relieved from the case and the motion was granted. The matter proceeded to inquest and plaintiff was awarded a judgment of $514,382.78. As that judgment was unsatisfied, plaintiff brought this action against the insurer. The issue before this court is not the ultimate issue in the case. Rather, the issue is the scope of the questions that can be asked of plaintiff at her deposition. From the papers and oral argument, defendant has represented that it will not ask any questions about the accident itself; it will not ask what she tripped on or delve into the issue of sidewalk defect, for example. The plaintiff has agreed to allow defendant to ask questions about the disclaimer; if plaintiff was a complete stranger to Jin, then that line of questioning will undoubtedly be short. If she was aware of Jin or the family living in or owning the premises, then the questions may take longer. The issue left for this court to decide is whether defendant may ask plaintiff about her damages. Plaintiff claims that ship has sailed and the proper way to contest damages 154835/2017 OH, YONG SOON vs. AMERICAN BANKERS INSURANCE Motion No. 001 2 of 4 Page~ Z,'\ ~ INDEX NO. 154835/2017 [*FILED: NEW YORK COUNTY CLERK 08/02/2018 04:15 PM 3] NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/02/2018 is to move to vacate the inquest and have another inquest, and ifthat motion is denied, then to appeal the denial. However, defendant claims it has no basis to make such a motion in that Queens case; this defendant is an insurance company and was not a party to that litigation. Defendant claims that because courts have the inherent authority to review damages awarded, even at an inquest, this court should allow defendant to question plaintiff as to her damages. The court understands that defendant is in a pickle; it assigned counsel to represent Mr. Jin and that counsel admitted ownership, perhaps without ever speaking to Mr. Jin or conducting a search about ownership of the house. But this court does not have the , authority to review an inquest award and judgment from Supreme Court; only the Appellate Division has that power. Moreover, defense counsel, assigned by defendant here, instead of appearing at the inquest and cross-examining plaintiff to contest her damages, chose to move to get off the case. This allowed plaintiffs proof at the inquest go unchallenged. Certainly, it was in Mr. .Tin's interest to challenge the proofs. As it turns out, it was in defendant's interest to challenge the proofs, too. Defendant's assigned counsel declined to challenge plaintiffs proof at the inquest; it would be improper to allow defendant to, in effect, get another chance to challenge plaintiff's damages in this forum. Because defendant cannot attack the judgment after inquest in this case, it cannot ask her about her damages at the deposition. 154835/2017 OH, YONG SOON Motion No. 001 vs. AMERICAN BANKERS 3 of 4 INSURANCE Page~ S<\~ INDEX NO. 154835/2017 [*FILED: NEW YORK COUNTY CLERK 08/02/2018 04:15 PM 4] NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 08/02/2018 Accordingly, it is ORDERED that defendant may ask questions of plaintiff regarding the validity of the disclaimer but may not ask her questions about her damages at her deposition in this case. Depositions must be completed before the next conference unless good cause is shown. Conference is scheduled for October 30, 2018 at 2:15 PM. 8/2/2018 ARLE DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED LJ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ 154835/2017 OH, YONG SOON vs. AMERICAN BANKERS INSURANCE Motion No. 001 4 of 4 P. BLUTH, J.S.C. NON·FINALDIS,ijQN., GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT ARLENE P. BLUTH 0 D OTHER REFERENCE Page-
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