Brown v Petit

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Brown v Petit 2019 NY Slip Op 34317(U) December 12, 2019 Supreme Court, Westchester County Docket Number: Index No. 71139/2018 Judge: Charles D. Wood 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. [*FILED: 1] WESTCHESTER COUNTY CLERK 12/13/2019 10:55 AM NYSCEF DOC. NO. 56 INDEX NO. 71139/2018 RECEIVED NYSCEF: 12/12/2019 commence the statutory statutory time time To commence period appeals as of of right right period for appeals (CPLR 5513[a]), 55 13(a]), you are advised advised (CPLR to serve serve a copy copy of of this order, order, with notice of of entry, entry, upon all parties. parties. notice SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK YORK SUPREME COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------~----------x --------------------------------------------------------------------------x MARLENE MARLENE BROWN, BROWN, Plaintiff, Plaintiff, DECISION & ORDER ORDER DECISION Index Index No. 71139/2018 71139/2018 -against-againstJACQUES PETIT, PETIT, and and PROGRESSIVE PROGRESSIVE ADVANCED ADVANCED JACQUES INSURANCE INSURANCE COMPANY, COMPANY, Seq. No. No.22 Defendants. Defendants. ______________________________________________________ --------------------x --------------------------------------------------------------------------x WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Document Document Numbers Numbers 34-47, 34-47, were were New read in connection connection with with defendants defendants Jacques Jacques P. Petit, Petit, and Progressive Progressive Advanced Advanced Insurance Insurance Company's motion motion to dismiss dismiss the complaint complaint against against Progressive. Progressive. Company's This action action arose arose from a motor motor vehicle vehicle accident accident on May 6, 201 2017, wherein plaintiff seeks This 7, wherein plaintiff seeks damages for personal personal injuries injuries allegedly allegedly sustained sustained when when she was over by defendant defendant to recover recover damages was run run over Petit's motor crossing the street crosswalk located located at Cliff Cliff Street Street in Petit's motor vehicle vehicle while while she was crossing street at the crosswalk Yonkers. Yonkers. NOW, foregoing the motion decided as follows: follows: NOW, based based upon upon the foregoing motion is decided settled that that pursuant CPLR 321 3211l(a)(7) (a)(7) "upon "upon a motion motion to dismiss dismiss [for failure failure It is well settled pursuant to CPLR cause of of action], action], the sole criterion criterion is whether whether the subject subject pleading pleading states states a cause cause of of to state a cause comers of of the complaint, complaint, factual allegations allegations are discerned which, action, and if, from the four comers discerned which, taken together, together, manifest manifest any cause cause of of action action cognizable cognizable at law, then then the motion motion will will fail. The The taken 1 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/13/2019 10:55 AM NYSCEF DOC. NO. 56 INDEX NO. 71139/2018 RECEIVED NYSCEF: 12/12/2019 court must must afford afford the pleading pleading a liberal liberal construction, construction, accept court accept the facts alleged alleged in the pleading pleading as true, accord accord the plaintiff plaintiff the benefit every possible possible inference, inference, and determine whether the of every determine only only whether true, benefit of alleged fit within within any cognizable cognizable legal theory" theory" (Esposito (Esposito v Noto, Dept facts as alleged Noto, 90 AD3d AD3d 825 [2d Dept 2011];; (Sokol (Sokol v Leader, Leader. 74 A.D.3d A.D.3d 1180 [2d Dept Dept 2010]); 2010]); (Bua (Hua v Purcell Purcell & Ingrao Ingrao P.C., P.C., 99 2011] AD3d 843, 843, 845 [2d Dept Dept 2012] 2012] Iv to appeal appeal denied, denied, 20 NY3d NY3d 857 [2013]). [2013]). This This does does not apply AD3d apply to legal conclusions factual claims claims which which were were either inherently incredible incredible or flatly contradicted conclusions or factual either inherently contradicted (West Branch Branch Conservation Conservation Assn. v County County of Rockland, 227 AD2d AD2d by documentflTYevidence document;iry evidence (West of Rockland, Dept 1996]). 1996]). If If the court court considers considers evidence evidence submitted submitted by a defendant of a defendant in support support of 547 [2d Dept motion to dismiss dismiss under under CPLR CPLR 3211 (a)(7), (a)(7), a court court may consider consider affidavits motion affidavits submitted submitted by the plaintiff to remedy remedy any defects complaint," and if if the court court does "the criterion criterion is does so, so, "the plaintiff defects in the complaint," whether the proponent proponent of of the pleading pleading has a cause cause of of action, not whether whether he has has stated action, not stated one" one" whether Martinez, 84 NY2d [1994];; Uzzle Uzzle v Nunzie Homeowners Ass'n, Ass'n, Inc. Inc.,, 70 (Leon v Martinez, NY2d 83, 88 [1994] Nunzie Ct. Homeowners AD3d 928, 928,9:;0 Dept 2010]); 2010]); Greene Greene v Doral Doral Conference Conference Ctf. Assoc., 18 AD3d AD3d 9Jb [2d Dept Ctr. Assoc., AD3d 429, 429, 430 430 [2d Dept and other other evidentiary evidentiary material considered to "establish Dept 2005]). 2005]). Affidavits Affidavits and material may also be considered "establish conclusively that plaintiff plaintiff has no cause cause of of action" action" (Simmons (Simmons v Edelstein, Edelstein, 32 AD3d AD3d 464, conclusively 464, 465 [2d 2006]), or where where a meritorious meritorious claim within inartful inartful pleadings pleadings (Lucia Dept 2006]), claim lies within (Lucia v Goldman, Goldman, 68 AD3d 1064, 1065 [2d Dept Dept 2009]). 2009]). More More succinctly, succinctly, under under CPLR CPLR 321 3211(a)(7), AD3d l (a)(7), the standard standard is whether the pleading pleading states states a cause cause of of action, action, but if if the court court considers material, the considers evidentiary evidentiary material, whether criterion then then becomes becomes "whether "whether the proponent proponent of of the pleading pleading has has a cause action" (Sokol (Sokol v criterion cause of of action" Leader, 74 AD3d AD3d 1180, 1180, 1181 1181-82 [2010]; Marist Marist College College v Chazen Chazen Envtl. Envtl. Serv. Servo 84 AD3d AD3d 11181 Leader, -82 [2010]; Dept 2011 2011]). Whether a plaintiff plaintiff can ultimately ultimately establish establish [his or her] allegations allegations is not not part part of of [2d Dept ]). Whether calculus (Dee (Dee v Rakower, Rakower, 112 AD3d AD3d 204 [2d Dept Dept 2013]). the calculus 2013]). 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/13/2019 10:55 AM NYSCEF DOC. NO. 56 INDEX NO. 71139/2018 RECEIVED NYSCEF: 12/12/2019 In support plaintiff cannot support of of their their motion motion to dismiss, dismiss, defendants defendants claim claim that that plaintiff cannot sue Progressive directly directly because because there there was no privity privity of of contract contract between plaintiff and Progressive; Progressive; Progressive between plaintiff plaintiff has no common common law right right to seek relief directly tortfeasor's s insurer, insurer, and that that the plaintiff seek relief directly from a tortfeasor' statutory judgment statutory right created created in Insurance Insurance Law Law 3420 3420 arises arises only after after plaintiff plaintiff has obtained obtained aajudgment in the underlying underlying personal personal injury injury action. action. preliminary matter, matter, plaintiff argues that that defendants defendants did not not plead lack of of privity privity in As a preliminary plaintiff argues plead lack their answer. answer. CPLR CPLR 3018(b) 3018(b) states: states: their "Affirmative defenses. defenses. A party shall plead plead all matters matters which, which, if if not pleaded, pleaded, would would be "Affirmative take the adverse adverse party surprise or would would raise issues issues of of fact not not appearing appearing on the face likely to take party by surprise of a prior pleading .... ...."" of prior pleading Howe;-'er, privity privity is not a defense defense specifically specifically enumerated enumerated under under CPLR CPLR 3211(e) subject Howe;;er, 321 l(e) as subject waiver if if not timely timely pled. pled. In any event, come as no surprise surprise to plaintiff plaintiff that that it did not event, it can come to waiver directly contract contract with with the Progressive. Progressive. Thus, Thus, contrary contrary to the plaintiffs' plaintiffs' contention, defendant did directly contention, defendant waive its defense defense regarding regarding the applicable applicable coverage coverage limit limit by failing failing to plead plead it as an not waive affirmative defense, defense, since since this defense defense did not take the plaintiffs plaintiffs by surprise, surprise, and and did not raise raise affirmative issues of of fact not appearing appearing on the face of of the complaint complaint (see CPLR CPLR 3018[b] 3018[b] ); (Giraldo (Giraldo v issues Washington Int'l Ins. Co., 103 AD3d AD3d 775 775,, 776 [2d Dept Dept 2013]). 2013]). The The evidence evidence before before the court court Washington establishes a lack of of privity privity between between plaintiff Progressive. plaintiff and Progressive. establishes Further, under under the common common law, "an "an injured injured person person possessed possessed no cause cause of of action action against against Further, insurer of of the tort tort feasor" feasor" (Lang (Lang v Hanover Hanover Ins. Co., 3 NY3d 350, 353 [2004]). [2004]). To remedy remedy NY3d 350, the insurer inequity, Insurance Insurance Law Law §3420 S3420 grants grants an injured injured party party a right right to sue the the tortfeasor's tortfeasor's insurer, insurer, this inequity, unde:!"limited limited circumstances-the circumstances-the injured party must must first obtain obtain a judgment against the injured judgment against but only undc,r 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/13/2019 10:55 AM NYSCEF DOC. NO. 56 INDEX NO. 71139/2018 RECEIVED NYSCEF: 12/12/2019 tortfeasor, serve insurance company company with with a copy of of the judgment and await await payment payment for 30 tortfeasor, serve the insurance judgment and Compliance with with these these requirements requirements is a condition condition precedent precedent to a direct direct action action against days. Compliance against the insurance company company (Lang (Lang v Hanover Hanover Ins. Co., Co., 3 NY3d 350, [2004]). [2004]). Having Having failed failed to fulfill the insurance NY3d 350, condition precedent precedent to suit, namely, namely, gaining gaining a judgment against Progressive, Progressive, plaintiff plaintiff cannot condition judgment against cannot pursue a direct direct action action against against Progressive. Progressive. pursue Even as the court court accepts accepts the facts as alleged complaint as true, true, as the court court must, must, Even alleged in the complaint accords plaintiff benefit of of every every possible possible favorable favorable inference, inference, the court court finds finds that that and accords plaintiff the benefit plaintiff has not sufficiently sufficiently pleaded pleaded a cause cause of of action action against against Progressive. Progressive. plaintiff Accordingly, based based upon upon the stated stated reasons, reasons, it is hereby hereby Accordingly, ORDERED, that that defendants' defendants' motion motion to dismiss dismiss the complaint against Progressive Progressive is ORDERED, complaint as against Granted; and it is further further Granted; ORDERED, that that the remaining remaining parties parties are directed directed to appear appear in the Compliance Compliance Part Part on ORDERED, 2019 , at CJ '1 I, '3 , 2019 ' ' 10 ,A-,-,f . :}o,AM. . Room 800 of of the Westchester Westchester County County Courthouse, Courthouse, 111 Dr. Martm Martm in Room Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New New York York 10601 10601.. Luther The Clerk Clerk,shall mark his records. records. shall mark other matters matters not herein herein decided decided are denied. denied. This This constitutes constitutes the Decision Decision and Order Order All other of the Court. Court. of Date: December December 12, 2019 Date: White Plains, Plains, New York York White TO: Parties by NYSCEF All Parties NYSCEF 4 4 of 4

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