Giamundo v. Dunn

• Docket Number: Index No. 709389/2020,Cal. No. 17,Mot. Seq. No. 005
• Decision Date: 05 January 2021
• Parties: MARIA GIAMUNDO, Plaintiff, v. CLEVELAND DUNN 2, ROBERT EARL DUNN, FOR SUMMARY KAREN A. SAUTER INSURANCE AGENCY INC. JUDGMENT and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

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2021 NY Slip Op 34024(U)

MARIA GIAMUNDO, Plaintiff,
v.
CLEVELAND DUNN 2, ROBERT EARL DUNN, FOR SUMMARY KAREN A. SAUTER INSURANCE AGENCY INC. JUDGMENT and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

Index No. 709389/2020, Cal. No. 17, Mot. Seq. No. 005

Supreme Court, Queens County

January 5, 2021

Unpublished Opinion

MOTION DECISION

SHORT FORM ORDER

Pam Jackman Brown, JSC

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The following numbered papers were read on this motion by Defendants, Karen A. Sauter Insurance Agency, Inc. (Sauter Agency) and State Farm Automobile Insurance Company (State Farm), seeking, among other things, summary judgment, pursuant to CPLR § 3212.

PAPERS E-FILE NUMBERED
Papers	Exhibits
Notice of Motion- Affidavits, Affirmations, Memorandum of Law, Exhibits Annexed	6 - 7, 25	8 - 24
Answering Affirmation - Exhibits Annexed	26	27 - 31
Reply Affirmation Annexed	32

Upon the foregoing papers, it is ordered that this motion by Defendants, Sauter Agency and State Farm, for, among other things, summary judgment, pursuant to CPLR § 3212, is determined as follows:

Plaintiff, the owner/operator of a motor vehicle which was insured by Defendant, State Farm, procured through Defendant, Sauter Agency, was involved in an accident in

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Queens County on December 20, 2011, with a vehicle owned by Defendant, Robert Earl Dunn, and operated by Defendant, Cleveland Dunn 2^nd. Rose Smith Dunn was a passenger in the Dunn vehicle. Both Plaintiff and Rose Smith Dunn were injured in the accident.

Plaintiff, through her attorney, sought to collect SUM coverage from her State Farm policy. State Farm denied such claim, as Plaintiffs SUM coverage limits of $25,000/$50,000 were less than the $30,000/$60,000 bodily liability limits of the Dunn vehicle. Thereafter, on October 25, 2012, Plaintiff commenced this action against the Dunns to recover for personal injuries sustained, and against State Farm and Sauter Agency, asserting the negligence of said Defendants in not providing her with SUM limits equal to her bodily injury policy limits of $250,000/$500,000.

In August 2015, Defendants, Sauter Agency and State Farm's motion for summary judgment, seeking dismissal of the complaint, was granted. Plaintiff appealed such decision. In September 2015, Plaintiffs claim against the Dunns was settled for the full amount of their policy, and the case against them was discontinued.

Meanwhile, in early 2015, the Dunns commenced an action for personal injuries against Plaintiff in Kings County. Pursuant to its insurance agreement with Plaintiff, State Farm assigned counsel for Plaintiff, to defend that action. In July 2016, following discovery and a trial, a jury found Plaintiff to be solely liable for causing the subject accident. Thereafter, pursuant to its right under the insurance agreement, State Farm settled the claims of the Dunns against Plaintiff, within the policy limits.

In January 2018, the Appellate Division reversed the 2015 dismissal of Plaintiff s complaint against the remaining Defendants. In November 2018, Defendants' moved to amend their answer to add an affirmative defense of collateral estoppel, which was opposed by Plaintiff, but, ultimately, granted. In January 2019, Plaintiff served an amended complaint, in response to Defendants' amended answer, adding a Third Cause of Action for breach of contract, for the alleged failure to procure SUM insurance of $250,000/$500,000, and a Fourth Cause of Action, against State Farm, only, asserting fraud, breach of contract, and bad faith.

Defendants move for summary judgment, dismissing Plaintiffs amended complaint based on collateral estoppel and/or statute of limitations grounds, pursuant to CPLR § 3211 (a) (5); failure to state a cause of action, pursuant to CPLR § 3211 (a) (7); and failure to comply with CPLR § 3016 (b). Plaintiff opposes.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 [1993],

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citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; see Schmitt v. Medford Kidney Center, 121 A.D.3d 1088 [2014]; Zapata v. Buitriago, 107 A.D.3d 977 [2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). On Plaintiffs motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving Defendants (see Monroy v. Lexington Operating Partners, LLC, 179 A.D.3d 1053 [2d Dept 2020]; Rivera v. Town of Wappinger, 164 A.D.3d 932 [2d Dept 2018]: Boulos v. Lerner-Harrington, 124 A.D.3d 709 [2d Dept 2015]). Credibility issues regarding the circumstances of the subject transactions require resolution by the trier of fact (see Bravo v. Vargas, 113 A.D.3d 579 [2d Dept 2014]; Martin v. Cartledge, 102 A.D.3d 841 [2d Dept 2013]), and the denial of summary judgment.

The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v. Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Santiago v. Joyce, 127 A.D.3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable' [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]; see also, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 A.D.3d 767 [2d Dept 2008], Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v. Jiacono, 126 A.D.3d 927 [2d Dept 2014]), citing Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]; see Charlery v. Allied Transit Corp., 163 AD3 914 [2d Dept 2018]; Chimbo v. Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v. Vargas, 113 A.D.3d 579 [2d Dept 2014]).). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 N.Y.2d 851 [1985]).

Defendants contend that summary judgment dismissing the complaint is warranted pursuant to CPLR § 3211 (a) (5), on the basis of collateral estoppel, with regard to the jury verdict in the Kings County action brought by the Dunns. Collateral estoppel, or issue preclusion, "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party' (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500 [1984]; see Napoli v. Breaking Media, Inc., 187 A.D.3d 1026 [2d Dept 2020]; Broder v. Pallotta &Assoc. Dev., Inc., 186 A.D.3d 1189 [2d Dept 2020]). The party seeking to invoke collateral estoppel

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has...