| Progressive Ins. Co. v Strough |
| 2008 NY Slip Op 07463 [55 AD3d 1402] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Progressive Insurance Company, Appellant-Respondent, v MichelleStrough, Respondent-Appellant. |
—[*1] Hogan Willig, PLLC, Amherst (John B. Licata of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from a judgment (denominated order) of the Supreme Court, Erie County(Penny M. Wolfgang, J.), entered December 19, 2006 in a declaratory judgment action. The judgment,among other things, denied defendant's motion for summary judgment.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging that defendant failed to cooperate withplaintiff, as required by her insurance policy, when she was injured in a motor vehicle accident and that,based on that failure, plaintiff is entitled to a declaration that it has no duty to indemnify defendant or topay her no-fault insurance benefits with respect to those injuries.
We conclude that Supreme Court properly denied defendant's motion seeking summary judgmentdismissing the complaint and confirming the award of the master arbitrator and properly granted thatpart of the cross motion of plaintiff seeking a de novo determination of its claim that it has no duty toindemnify defendant for claims arising from the motor vehicle accident, including claims for no-faultbenefits. Contrary to the contention of defendant, the action is not barred by the doctrine of resjudicata. Although the doctrine of res judicata generally applies with respect to a final arbitration award(see Rembrandt Indus. v Hodges Intl., 46 AD2d 623, 623-624 [1974], affd 38 NY2d502 [1976]), Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (h) (1) (ii) expressly providethat either party to a matter submitted to arbitration has the right to a de novo determination of thedispute in the event that the master arbitrator's award is $5,000 or greater, exclusive of interest andattorney's fees, and that is the case here (see Matter of Greenberg [Ryder Truck Rental], 70NY2d 573, 576-577 [1987]; Matter of Capuano v Allstate Ins. Co., 122 AD2d 138, 139[1986]).
We further conclude that the court properly denied that part of plaintiff's cross motion for [*2]summary judgment declaring that plaintiff has no duty to indemnifydefendant for claims arising from the motor vehicle accident in question, including claims for no-faultbenefits. Plaintiff failed to support its motion with evidence provided by an individual with personalknowledge of the facts (see Chiarini v Countyof Ulster, 9 AD3d 769, 769-770 [2004]), and the documents provided by plaintiff in supportof the cross motion do not establish that defendant failed to cooperate with plaintiff, as alleged in thecomplaint. Thus, plaintiff failed to meet its burden of establishing its entitlement to judgment as a matterof law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; NewYork Cas. Ins. Co. v Kushner, 309 AD2d 1235 [2003]). Present—Scudder, P.J.,Martoche, Fahey, Peradotto and Gorski, JJ.