Velazquez v. Water Taxi, Inc.

Appellate Division of the Supreme Court of New York

Velazquez v. Water Taxi, Inc.

66 A.D.2d 691, 411 N.Y.S.2d 261, 1978 N.Y. App. Div. LEXIS 13972

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 14, 1978

StatusPublished

This text of 66 A.D.2d 691 (Velazquez v. Water Taxi, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Velazquez v. Water Taxi, Inc., 66 A.D.2d 691, 411 N.Y.S.2d 261, 1978 N.Y. App. Div. LEXIS 13972 (N.Y. Ct. App. 1978).

Pincite

Opinions

Order, Supreme Court, Bronx County, entered November 10, 1977, denying defendants’ motion for summary judgment to dismiss the complaint, reversed, on the law, without costs or disbursements, summary judgment [692]*692granted to defendants, and the complaint dismissed. Plaintiff was a passenger in a taxicab owned by one of the corporate defendants and operated by the defendant Campbell, an employee of the other corporate defendant. She sustained injuries when the taxi collided with a car operated by a hit-and-run driver. Plaintiff commenced arbitration proceedings under the uninsured motorist provision of defendants’ insurance policy. She also commenced this action against defendants as tort-feasors. Both the notice to arbitrate and summons claimed $1,000,000 as the relief sought for the personal injuries sustained by plaintiff. The arbitrator awarded $2,500 for noneconomic loss, since "No issue as to economic loss was submitted to this arbitration.” Plaintiff moved to confirm the award which was eventually reduced to judgment. Defendants made payment and the judgment was satisfied. They subsequently moved in this action for summary judgment "on the ground that plaintiff has received judgment for the injury claimed and said judgment has been satisfied”. Special Term denied the motion, finding that plaintiff’s submission of her uninsured motorist claim to arbitration "is not an election of remedy barring her right to proceed at law on her other cause of action against the defendants”. This appeal resulted. Special Term misperceived the issue. What is involved is not an election of remedies but rather the application of res judicata and the release effect on other tort-feasors in pari delicto brought about by the satisfaction of a judgment against one of the tort-feasors. It is clear from the notice of intention to arbitrate that plaintiff sought $1,000,000, notwithstanding the fact that the limits of the uninsured motorist coverage were $10,000, without any reservation of rights or limitation of recovery requested based on an apportionment of the tort-feasors’ liability. There was a general submission of the controversy, and any award made is thus conclusive and final on the issues submitted. (Ott v Schroeppel, 5 NY 482; New York Lbr. & Wood Working Co. v Schnieder, 119 NY 475; Matter of Garnett v Kassover, 8 AD2d 631.) We also find it significant that in awarding damages for plaintiff’s injuries, the arbitrator obviously did not feel constrained by the $10,000 limit available under the uninsured motorist endorsement, since he awarded damages representing only 25% of that amount. Plaintiff’s position would be more tenable if the submission were limited to only those damages attributable to the hit-and-run tort-feasor, and the arbitrator had awarded $10,000. This award was subsequently judically confirmed on plaintiff’s application. Thus the arbitrator’s determination was res judicata as to the value of petitioner’s injuries. (Parillo v Nataro, 34 Misc 2d 800.) Furthermore, once the award was reduced to judgment and satisfied, defendants, as joint tort-feasors, were released from liability. (Rossbach v Rosenblum, 260 App Div 206; Sarine v American Lumbermen’s Mut. Cas. Co. of Ill., 258 App Div 653.) In the face of a satisfied judgment, plaintiff could not proceed to obtain another judgment for the same injury arising out of the same tort. (See Goines v Pennsylvania R. R. Co., 6 AD2d 531.) Nor can plaintiff avail herself of CPLR 3002 (subd [a]), to proceed against other parties, since that section applies only where a judgment is not fully satisfied. It should be noted that plaintiff commenced this action first and could have proceeded to judgment against these defendants while preserving her rights under the uninsured motorist provision. In fact, defendants did attempt to stay the arbitration on the ground of the pendency of this action. But she chose instead to submit the controversy to the arbitrator without reservation and to take that proceeding to a judgment which has been satisfied. Concur— Murphy, P. J., Markewich and Sullivan, JJ.; Sandler, J., dissents in a memorandum and Lupiano, J., concurs in the dissent in a separate memorandum as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, Bronx County, entered November 10, 1977, denying defendants’ motion for summary judgment to dismiss the complaint, reversed, on the law, without costs or disbursements, summary judgment [692]*692granted to defendants, and the complaint dismissed. Plaintiff was a passenger in a taxicab owned by one of the corporate defendants and operated by the defendant Campbell, an employee of the other corporate defendant. She sustained injuries when the taxi collided with a car operated by a hit-and-run driver. Plaintiff commenced arbitration proceedings under the uninsured motorist provision of defendants’ insurance policy. She also commenced this action against defendants as tort-feasors. Both the notice to arbitrate and summons claimed $1,000,000 as the relief sought for the personal injuries sustained by plaintiff. The arbitrator awarded $2,500 for noneconomic loss, since "No issue as to economic loss was submitted to this arbitration.” Plaintiff moved to confirm the award which was eventually reduced to judgment. Defendants made payment and the judgment was satisfied. They subsequently moved in this action for summary judgment "on the ground that plaintiff has received judgment for the injury claimed and said judgment has been satisfied”. Special Term denied the motion, finding that plaintiff’s submission of her uninsured motorist claim to arbitration "is not an election of remedy barring her right to proceed at law on her other cause of action against the defendants”. This appeal resulted. Special Term misperceived the issue. What is involved is not an election of remedies but rather the application of res judicata and the release effect on other tort-feasors in pari delicto brought about by the satisfaction of a judgment against one of the tort-feasors. It is clear from the notice of intention to arbitrate that plaintiff sought $1,000,000, notwithstanding the fact that the limits of the uninsured motorist coverage were $10,000, without any reservation of rights or limitation of recovery requested based on an apportionment of the tort-feasors’ liability. There was a general submission of the controversy, and any award made is thus conclusive and final on the issues submitted. (Ott v Schroeppel, 5 NY 482; New York Lbr. & Wood Working Co. v Schnieder, 119 NY 475; Matter of Garnett v Kassover, 8 AD2d 631.) We also find it significant that in awarding damages for plaintiff’s injuries, the arbitrator obviously did not feel constrained by the $10,000 limit available under the uninsured motorist endorsement, since he awarded damages representing only 25% of that amount. Plaintiff’s position would be more tenable if the submission were limited to only those damages attributable to the hit-and-run tort-feasor, and the arbitrator had awarded $10,000. This award was subsequently judically confirmed on plaintiff’s application. Thus the arbitrator’s determination was res judicata as to the value of petitioner’s injuries. (Parillo v Nataro, 34 Misc 2d 800.) Furthermore, once the award was reduced to judgment and satisfied, defendants, as joint tort-feasors, were released from liability. (Rossbach v Rosenblum, 260 App Div 206; Sarine v American Lumbermen’s Mut. Cas. Co. of Ill., 258 App Div 653.) In the face of a satisfied judgment, plaintiff could not proceed to obtain another judgment for the same injury arising out of the same tort. (See Goines v Pennsylvania R. R. Co., 6 AD2d 531.) Nor can plaintiff avail herself of CPLR 3002 (subd [a]), to proceed against other parties, since that section applies only where a judgment is not fully satisfied. It should be noted that plaintiff commenced this action first and could have proceeded to judgment against these defendants while preserving her rights under the uninsured motorist provision. In fact, defendants did attempt to stay the arbitration on the ground of the pendency of this action. But she chose instead to submit the controversy to the arbitrator without reservation and to take that proceeding to a judgment which has been satisfied. Concur— Murphy, P. J., Markewich and Sullivan, JJ.; Sandler, J., dissents in a memorandum and Lupiano, J., concurs in the dissent in a separate memorandum as follows:

Cite This Page — Counsel Stack

Bluebook (online)

66 A.D.2d 691, 411 N.Y.S.2d 261, 1978 N.Y. App. Div. LEXIS 13972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velazquez-v-water-taxi-inc-nyappdiv-1978.

Opinions

Related

Cite This Page — Counsel Stack