State Farm Fire v. Parking Sys. Valet Serv.

• Decision Date: 07 June 2011
• Citation: 2011 N.Y. Slip Op. 05045,85 A.D.3d 761,926 N.Y.S.2d 541
• Parties: STATE FARM FIRE AND CASUALTY, as subrogee of Joseph N. Misk, appellant,v.PARKING SYSTEMS VALET SERVICE, respondent.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 761
926 N.Y.S.2d 541
2011 N.Y. Slip Op. 05045

STATE FARM FIRE AND CASUALTY, as subrogee of Joseph N. Misk, appellant,
v.
PARKING SYSTEMS VALET SERVICE, respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 7, 2011.

[926 N.Y.S.2d 542]

Serpe, Andree & Kaufman, Huntington, N.Y. (Cynthia G. Gamana of counsel), for appellant.Stephen David Fink, Forest Hills, N.Y., for respondent.A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, and JEFFREY A. COHEN, JJ.

[85 A.D.3d 761] In a subrogation action to recover insurance benefits paid to the plaintiff's insured

[926 N.Y.S.2d 543]

for the theft of personal property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), entered July 21, 2010, as, upon reargument, adhered to the determination in an order of the same court entered June 23, 2009, denying its postjudgment motion to compel nonparty Mark Baron and attorney Steven David Fink to appear for an in camera review of records and depositions of both of them and for the imposition of a sanction upon the nonparty Mark Baron, and denied that branch of its motion which was for leave to renew its prior motion for the same relief.

ORDERED that the order entered July 21, 2010, is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff's motion which was for leave to renew that branch of its postjudgment motion which was to compel a new deposition of nonparty Mark Baron and substituting therefor a provision granting that branch of the plaintiff's motion which was for leave to renew, (2) by deleting the provision thereof, upon reargument, adhering to the determination in the order entered June 23, 2009, denying that branch of the plaintiff's postjudgment motion which was to compel a new deposition of nonparty Mark Baron, and substituting therefor a provision, upon renewal and reargument, vacating the determination in the order entered June 23, 2009, denying that branch of the plaintiff's postjudgment motion, and thereupon granting that branch of the plaintiff's postjudgment motion which was to compel a new deposition of nonparty Mark Baron, to be supervised by the Supreme Court, Queens County, in accordance with CPLR 3104(a), and (3) by deleting the provision thereof, upon reargument, adhering to the determination in the [85 A.D.3d 762] order entered June 23, 2009, denying that branch of the plaintiff's postjudgment motion which was to impose a sanction upon nonparty Mark Baron, and substituting therefor a provision denying that branch of the plaintiff's motion, without prejudice to the plaintiff's right to move, pursuant to Judiciary Law § 756, upon the proper service of appropriate papers, to hold nonparty Mark Baron in civil contempt; as so modified, the order entered July 21, 2010, is affirmed insofar as appealed from, without costs or disbursements.

On February 12, 2004, a parking attendant employed by Parking Systems Valet Service at a restaurant in Bayside parked a car driven to the restaurant by Joseph N. Misk. The car was a leased 2002 Mercedes Benz CL500. After dinner, when Misk attempted to retrieve the car, he was informed by the attendant that both his car and his keys were missing. Misk filed a claim with his insurer, State Farm Fire and Casualty (hereinafter State Farm), which paid out the sum of $78,283 for the loss. State Farm thereafter commenced this subrogation action against Parking Systems Valet Service. Initially, however, State Farm had named “Parking Systems, Inc.” as the defendant; in an order dated September 13, 2006, the Supreme Court granted State Farm's motion for leave to file an amended summons and complaint, changing the name of the defendant to “Parking Systems Valet Service,” noting that “the defendant does not dispute that it is the correct defendant.”

The action proceeded to trial. Attorney Stephen David Fink appeared and defended the action on behalf of Parking Systems Valet Service, and called a witness, Cesar Uraga, who testified that he was an employee of an entity known as “Parking Systems,” and that he was working on the evening that Misk's car could not be found. The Supreme Court (Geller, J.H.O.), found in favor of State Farm on its cause of action to recover the value of the missing

[926 N.Y.S.2d 544]

car. On September 29, 2008, a judgment was entered in State Farm's favor and against Parking Systems Valet Service in the principal sum of $78,063. Parking Systems Valet Service, represented by Fink, appealed that judgment to this Court and, on May 26, 2009, this Court affirmed ( see State Farm Fire & Cas. v. Parking Sys. Valet Serv., 63 A.D.3d 1139, 881 N.Y.S.2d 308).

Thereafter, the plaintiff engaged in postjudgment collection efforts by serving an information subpoena duces tecum upon Mark Baron,...