Greenspan v. Doldorf
| Decision Date | 26 April 1982 |
| Citation | 87 A.D.2d 884,449 N.Y.S.2d 535 |
| Parties | Jean GREENSPAN, Plaintiff-Respondent, v. Alfred DOLDORF, Appellant, and Motor Vehicle Accident Indemnification Corporation, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Nathan Cyperstein, New York (Alvin P. Bluthman, New York City, on the brief), for appellant.
Pazer & Epstein, P. C., New York City (Dino LaFiandra, New York City, on the brief), for plaintiff-respondent.
Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York City (Barry M. Ruderman and Sidney Gaines, New York City, on the brief), for defendant-respondent.
Before LAZER, J. P., and MANGANO, BROWN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, defendant Doldorf appeals from an order of the Supreme Court, Kings County, dated July 28, 1981, denying his motion for summary judgment.
Order reversed, on the law, without costs or disbursements, motion granted, and plaintiff's complaint as against defendant Doldorf and the cross claim of defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) are dismissed.
Plaintiff is collaterally estopped from relitigating defendant Doldorf's involvement in the accident. The record indicates that while the forum and the benefits sought are different, the issue in both the arbitration proceeding and the instant action is the same--i.e., whether Doldorf's vehicle was involved. The arbitrator's opinion that plaintiff failed in her proof is conclusive on the issue. (See, e.g., Matter of Government Employees Ins. Co. v. Kozlowski, 62 A.D.2d 1056, 404 N.Y.S.2d 150; Rembrandt Ind. v. Hodges Int., 38 N.Y.2d 502, 381 N.Y.S.2d 451, 344 N.E.2d 383.) Although not a party to the arbitration proceeding, Doldorf may apply the arbitrator's decision in the instant action (see Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725), notwithstanding his failure to affirmatively plead collateral estoppel as an affirmative defense. (See, e.g., Pantel v. Becker, 89 Misc.2d 239, 391 N.Y.S.2d 325; see, also, Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3212:10, C3212:11.) As for defendant MVAIC, it is not collaterally estopped by the arbitrator's adverse determination, it not having been a party to the arbitration. (See, e.g., Kaufman v. Towers Transp., 63 A.D.2d 669, 404 N.Y.S.2d 684.)
MVAIC's cross claim against Doldorf for...
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