Tyler v Motor Veh. Acc. Indem. Corp.

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Tyler v Motor Veh. Acc. Indem. Corp. 2023 NY Slip Op 31732(U) May 23, 2023 Supreme Court, New York County Docket Number: Index No. 161860/2015 Judge: James G. Clynes 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. 161860/2015 RECEIVED NYSCEF: 05/23/2023 NYSCEF DOC. NO. 93 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. JAMES G. CLYNES Justice ------- ---------- --------------------- --- --- --- ------ -------- -------- ----- --- ----X 22M INDEX NO. 161860/'.'0l5 MOTION DATE 01/27/2020, 01/27/2020 TRACY TYLER, Plaintiff, 003 003 MOTION SEQ. NO. - V - THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, JOHN DOE. ABC CORPORATION, DECISION + ORDER ON MOTION Defendant. ------ --- -- ----- --- --- --- -- ---- --- --- --- --- ------ --- --- ----- --- --- -- --- -- --- -----X THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION Third-Party Index No. 595998/2017 Plaintiff, -againstLUIS SANCHEZ, EXTASEA CAB CORP, TINA TAXI SERVICE, QUEENS MEDALLION BROKERAGE Defendant. ----- ------- --------- --------- --- --- ------ ------ --- -------- -------- ------------- X The following c-filed documents, listed by NYSCEF document number (Motion 003) 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82,83, 84, 85,86, 87, 88,89,90,91 were read on this motion to/for AMEND CAPTION/PLEADINGS The following e-filed documents, listed by NYSCEF document number (Motion 003) 66. 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,88, 89,90,91 JUDGMENT- SUMMARY were read on this motion to/for Upon the foregoing documents and following oral argument, the motion by Third-Party Defendants Luis Sanchez and Extasea Cab. Corp. to amend their answer to the Third-Party Complaint pursuant to CPLR 3025, and upon such amendment granting summary judgment pursuant to CPLR 3212 dismissing the Third-Party Complaint against Defendants Luis Sanchez and EXTASEA Cab. Corp. is decided as follows: 1618601201:- TYLER. TRAC\' '.\lotion '.\o. 003 003 [* 1] \'S. MOTOR VEHICLE .-\CCIDE:"IT 1 of 4 Page I nf 4 INDEX NO. 161860/2015 RECEIVED NYSCEF: 05 /23/2023 NYSCEF DOC. NO. 93 Plaintiff seeks recovery for injuries allegedly sustained as a result of a December 3, 20 11 motor vehicle acc ident between Plaintiff pedestrian and a vehicle that allegedly fled the scene of the accident. Plain ti ff mo ved for leave to sue MV AIC pursuant to Insurance Law 52 18, wh ich was re ferred to a Framed Issue Heari ng before a Special Referee. The Special Referee fo und that Petitioner Tay lor met hi s burden and demonstrated that through reasonable efforts he was not able to ascertain the identi ty of the d river who injured him. In a November 13 , 20 15 Decision and Order, the Hon. Debra A. James ru led that the alleged driver and owner of the vehicle involved in the acc ident did not exist at the address listed on the police report and was not fo und in the records of the ew York S cretary of State and Petitioner Tracy was permitted to commence an action against MVAI C. In a February 16, 2016 Decision and Order, Judge James confirmed the findings of the Special Referee. MV AIC appealed both the November 13 , 2015 and February 16, 2016 Deci sions and the Appellate Division , First Department affirmed them. In a September 23 , 20 19 Decision and Order, the Hon. Adam Si lvera denied MV AIC's motion for summary judgment ruling that issues of fact ex ist and that it would be prejudicial to Plaintiff because wh ile the names of the Third-Pa11y Defendants were known to Plaintiff as they were listed in the Police Report, those individuals d id not ex ist at the address listed and as such Plaintiff was left with no one but MVA IC to sue . While leave to amend a plead ing should be freely given absent prejudice or surprise, a court may den y leave to ame nd when the proposed amendment lacks merit (Cafe Lughnasa Inc. v A& R Kalimian LLC, 176 AD3d 523 [1 st Dept 2019]; Verizon NY, Inc. v Consol. Edison. Inc., 38 AD3d 391 [ 1st Dept 2007]). Here, Th ird-Party Defendants Sanchez and Extasea seek to assert MV A IC's defense that Plaintiff Ty ler did not make reasonable efforts to ascertain the identity of the driver. They submit 1611i60/201S TYLER, TRAC Y vs . MOTOR VEHI C U : ACCIDENT Motion No. 003 003 [* 2] 2 of 4 Page 2 or 4 INDEX NO. 161860/2015 RECEIVED NYSCEF: 05/23/2023 NYSCEF DOC. NO. 93 that MVAIC will not be surprised or prejudiced because MVAIC uncovered the facts upon which Third-Party Defendants Sanchez and Extasea seek to base their amended complaint contending that MV AIC did not properly raise the issue of Plaintiffs efforts in the prior proceedings, and they may do so now because third-party defendants may raise a defendant's defense to plaintiffs complaint even where it is no longer available to a defendant. They further submit that the evidence in the underlying proceeding showed that Plaintiff could have ascertained the identities of the taxi and the taxi's owner and driver, his petition against MVAIC should have been dismissed, and in turn, the Third-Party Complaint should be dismissed. In opposition, Plaintiff Tyler contends that the issue of Plaintiffs reasonable efforts to identify the tortfeasor had already been adjudicated in this case and has already been resolved, and that the defense Third-Party Defendants Sanchez and Extasea seek to assert is specific to MVAIC and not available to them. In opposition to the motion by Third-Party Defendants Sanchez and Extasea, MVAIC contends that Third-Party Defendants have no grounds to add Article 52 defenses because they are not alleged as causes of action in either the Plaintiff's or Third-Party Complaints. MVAIC further contends that in this negligence action, Third-Party Defendants do not stand in MVAIC's shoes but are averse to MVAIC and MV AIC 's defense is that of a non-involved party. This Court agrees. The Third-Party Complaint is not without merit as a matter of law. Plaintiffs noncompliance with Insurance Law Article 52, Section 5218, specifically whether Plaintiff exhausted all reasonable efforts to ascertain the identity of the tortfeasor, is a statutory defense available only to MV AIC (Insurance Law Article 52, Section 5218). These affirmative defenses are unique to MV ATC and are statutory requirements which a claimant must satisfy before permission to sue MVAIC may be granted (NYS Ins Law Article 52, Section 5218). The issues 16186012015 TYLER, TRACY vs. MOTOR VEIIICLE ACCIDENT Motion l\o. 003 003 [* 3] 3 of 4 Page 3 of 4 I ND EX NO. 1 61860/ 2 015 RECEIVED NYSCEF : 05 / 23 / 2023 NYSC EF DOC. NO. 93 perta in ing to Plainti ffs application for permission to sue MV AIC were resolved in prior litigation. Third-Party Defendants Sanchez and Extasea cannot now stand in MY AlC ' s shoes and assume those defenses as their own, because the statutory requirements do not apply to them. The motion is denied. Accordingly, it is ORDERED that the motion by Third-Party Defendants Luis Sanchez and Extasea Cab Corp. for leave to amend their answer to the third-party complaint and for summary judgment dismissing the Third-Party Complaint against Defendants Luis Sanchez and Extasea Cab Corp. is DE IED; and it is furthe r ORDE RED that any relief so ught no t expressly addressed herein has nonetheless been considered; and it is further ORD ERED that within 30 days, Plaintiff shall serve Defendants with a copy of this order with otice of Entry. Th is constitutes the Deci sion and Order of the Cou11. 5/23/2023 DATE CIIE('h:ONE : APPLI CATIOi\: C HEC K IF APPROPRIATE: ~ CASE Dl.'l'OSED GRANTE D 0 NON-Fl AL DI PO ITION DEN IED SEn·u : ORDER OTHER REFER ENCE SUBM IT ORDER l 'iC L UDE TRA:'\ FE R/REASSIGi\ FID CCIAR\' APPOINTMEi\T 1(,1860/2015 TYLER, TRACY vs. MOTOR VEHI CLE ,\CCIDENT Page 4 of 4 !\lotio11 No. 003 003 [* 4] 8 GRA!\'TED IN PART 4 of 4

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