April 18, 2005

Cortez v Countrywide Ins. Co. (2005 NY Slip Op 02994)

Headnote

The plaintiff was attempting to recover unpaid no-fault benefits from the defendant after being involved in an automobile accident. However, several years before the current action, the plaintiff had commenced an arbitration proceeding against the defendant to recover the same benefits. By electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits. The defendant did not move for summary judgment on this ground, but the court had the authority to search the record and award summary judgment to a nonmoving party with respect to a cause of action or issue that was the subject of the motion before the Supreme Court. Therefore, the court awarded summary judgment to the defendant and dismissed the complaint. The decision was also based on these circumstances and the plaintiff being precluded from maintaining the action. As a result, the judgment in favor of the plaintiff was reversed and the complaint was dismissed.

Reported in New York Official Reports at Cortez v Countrywide Ins. Co. (2005 NY Slip Op 02994)

Cortez v Countrywide Ins. Co.

2005 NY Slip Op 02994 [17 AD3d 508]

April 18, 2005

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 22, 2005

Ray Cortez, Respondent,
v
Countrywide Insurance Co., Appellant.

—[*1]

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 29, 2002, which, upon granting, in part, the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $229,815.

Ordered that the judgment is reversed, on the law, with costs, the motion is denied, upon searching the record, summary judgment is awarded to the defendant, and the complaint is dismissed.

Several years before he commenced the instant action, the plaintiff, who was involved in an automobile accident, commenced an arbitration proceeding against the defendant to recover no-fault benefits he alleged had been improperly denied (see Insurance Law § 5106 [b]). By electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits to which he was allegedly entitled as a result of that accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Gaul v American Employers’ Ins. Co., 302 AD2d 875 [2003]; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083 [1998]; Gibeault v Home Ins. Co., 221 AD2d 826 [1995]).

Although the defendant did not move for summary judgment dismissing the complaint on the ground that the plaintiff was precluded from maintaining this action, this Court has the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a [*2]nonmoving party with respect to a cause of action or issue that was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]). Under the circumstances of this case, as it is clear that the plaintiff is precluded from maintaining this action, we award summary judgment to the defendant and dismiss the complaint.

In light of our determination, we need not reach the defendant’s remaining contentions. H. Miller, J.P., Ritter, Rivera and Spolzino, JJ., concur.