Nationwide Ins. Co. v. Mocchia

Decision Date27 October 1997
Citation243 A.D.2d 692,663 N.Y.S.2d 640
PartiesNATIONWIDE INSURANCE COMPANY, etc., Respondent, v. Felice MOCCHIA, Appellant.
CourtNew York Supreme Court — Appellate Division

Isserlis & Sullivan, Bethpage (Alan H. Krystal, of counsel), for appellant.

Eltman, Eltman & Cooper, P.C., White Plains (Andrew Longo, of counsel), for respondent.

Before O'BRIEN, J.P., and THOMPSON, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a subrogation action to recover insurance benefits paid to the plaintiff's insured, the defendant appeals from an order of the Supreme Court, Westchester County (Fredman, J.), entered September 12, 1996, which denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff's insured executed a release in favor of the defendant.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

On March 31, 1992, the plaintiff's insured sustained personal injuries in an automobile accident with the defendant. On or about August 5, 1992, the plaintiff paid its insured $6,000 pursuant to a provision of its policy allowing elective coverage known as "additional personal injury protection benefits". There is no evidence that the plaintiff notified the defendant or the defendant's insurance carrier of that payment, or of the plaintiff's right of subrogation for that payment.

On September 10, 1993, the plaintiff's insured settled her claim against the defendant for $25,000 and signed a general release. In October 1994, the plaintiff, as subrogee of its insured, commenced the instant action against the defendant to recover the $6,000 payment. After issue was joined, the defendant moved for summary judgment based upon the general release. The plaintiff, in opposition, asserted that the general release was not a bar to its claim because, at the time the general release was executed, the defendant "knew or possessed information which reasonably pursued would have given it knowledge" of the plaintiff's subrogation rights with respect to the $6,000 payment (see, Ocean Acc. & Guar. Corp. v. Hooker ElectroChemical Co., 240 N.Y. 37, 47, 147 N.E. 351). The thrust of the plaintiff's argument was that the defendant was aware of the plaintiff's status as the automobile insurance carrier for the other party to the accident and therefore had constructive notice of any of its subrogation rights at the time she accepted the release. The Supreme...

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1 cases
  • State Farm Mut. Auto. Ins. Co. v. Knish Hacking Corp.
    • United States
    • New York Supreme Court — Appellate Term
    • June 21, 2016
    ... ... Mut. Fire Ins. Co. v. Hildreth, 40 AD3d 602, 607 [2007] ; State Farm Mut. Auto. Ins. Co. v. Hertz Corp., 28 AD3d 643, 644 [2006] ; Nationwide Ins. Co. v. Mocchia, 243 A.D.2d 692, 693694 [1997] ). Here, defense counsel was fully aware of the pending claim for equitable subrogation. Thus, ... ...

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