Ziegler v. Raskin

Decision Date24 April 1984
PartiesBruce ZIEGLER, Plaintiff-Respondent, v. Lester RASKIN, et al., Defendants-Respondents, and Merchants Mutual Insurance Company, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

N. Dechter, Woodbury, for plaintiff-respondent.

Short & Billy, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN and ASCH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered October 20, 1983, which denied the motion of defendant-appellant Merchants Mutual Insurance Company to dismiss the amended complaint as against it, is reversed on the law, and the motion is granted without costs.

The plaintiff-respondent was injured as the result of a motor vehicle accident which occurred on August 23, 1974. On that date, plaintiff had an insurance policy in effect with the defendant-appellant Merchants Mutual Insurance Company which, inter alia, provided for no-fault first party benefits totaling $50,000, as well as additional coverage with the defendant for extended economic loss under the additional injury protection endorsement.

In October of 1975, plaintiff retained the defendant law firm to handle his claim. Thereafter, on August 18, 1977, plaintiff and his wife executed a "Full Release and Settlement" for $87,500 with the tort-feasors involved in the auto accident, "forever discharging" them. The explicit understanding was that the settlement also covered all undisclosed injuries which might arise in the future. Plaintiff claimed that he signed the release "on the advice of counsel" in the belief that it was limited solely to pain and suffering and that it did "not deprive him or prejudice him in any way as to medical payments, loss of earnings, etc., or otherwise he would not accept such settlement." In the interim, defendant insurance company had paid plaintiff $72,408.33 under the no-fault provision and plaintiff, maintaining he still suffered additional medical expenses and economic loss, sought additional payments from the defendant insurer.

When defendant Merchants became aware of plaintiff's settlement with the tort-feasor for the first time. It asserted a lien in the sum of $22,408.33 as overpayment on the policy. Plaintiff demanded a no-fault arbitration against Merchants. After a full hearing, the arbitrator found for the defendant in a decision dated June 3, 1980.

The arbitrator determined that the settlement of the third-party lawsuit was not limited to pain and suffering and that Merchants had a valid defense to plaintiff's claims because of the subrogation clause in the policy. Additionally, the arbitrator held that there was no waiver or estoppel that would bar the defense since the defendant was under no obligation to give notice to plaintiff of the provisions of the subrogation clause. In short, the arbitrator found that plaintiff submitted no proof that the settlement solely covered unrelated non-economic loss limited to "pain and suffering." In addition, plaintiff never notified defendant of the settlement.

Thereafter, plaintiff commenced two actions, one against defendant attorneys and the other against defendant Merchants. These actions were consolidated. Defendant Merchants moved to dismiss the amended complaint as against it on the grounds there had been a prior award in arbitration and hence plaintiff had waived his right to commence the lawsuit. Defendant further asserted that the claim should be dismissed on the ground of res judicata and, finally, that the complaint failed to state a cause of action. Special Term denied this motion on the ground that an issue existed precluding dismissal without a trial. This denial was in error.

The doctrines of res judicata and collateral estoppel are applicable to issues resolved by...

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    ...285, 441 N.Y.S.2d 49, 423 N.E.2d 807). Arbitration (Clemens v. Apple, 65 N.Y.2d 746, 492 N.Y.S.2d 20, 481 N.E.2d 560; Ziegler v. Raskin, 100 A.D.2d 814, 474 N.Y.S.2d 745; Compton v. D'Amore, 101 A.D.2d 800, 475 N.Y.S.2d 463) and administrative determinations (Ryan v. New York Tel. Co., 62 N......
  • Hartford Ins. Group v. Posen
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    ...rights. Weinberg v. Transamerica Insurance Co., 62 N.Y.2d 379, 383, 477 N.Y.S.2d 99, 465 N.E.2d 819 (1984); Ziegler v. Raskin, 100 A.D.2d 814, 816, 474 N.Y.S.2d 745 (1st Dept.1984) appeals dismissed, 63 N.Y.2d 674, 479 N.Y.S.2d 527, 468 N.E.2d 709 (1984) and 65 N.Y.2d 925 (1985); Record v. ......
  • Shaw v. Bronfman
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    • New York Supreme Court — Appellate Division
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    ...order of preclusion against them, severely prejudiced the insurer's right of subrogation, in contravention of the policy (see, Ziegler v. Raskin, 100 A.D.2d 814, appeals dismissed 63 N.Y.2d 674, 65 N.Y.2d 925). The cause of action for trespass, however, asserted only against defendant owner......
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