| McHale v Anthony |
| 2010 NY Slip Op 01054 [70 AD3d 466] |
| February 11, 2010 |
| Appellate Division, First Department |
| Robert McHale et al., Respondents, v Michael K. Anthonyet al., Appellants, et al., Defendant. |
—[*1] Nicoletti Gonson Spinner & Owen, LLP, New York (Jamie T. Packer of counsel), forrespondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 26, 2009,which, in an action for personal injuries sustained in an accident between plaintiffs theMcHales's vehicle and a truck operated by defendant Anthony and leased to Anthony's employer,defendant Empire Beef Co. (collectively Empire), and allegedly owned by defendant RyderTruck Rental, Inc., granted Empire's motion to dismiss the complaint and all cross claims asagainst it only to the extent of limiting any recovery by plaintiff Liberty Mutual InsuranceCompany on its subrogation claim to $725,000, unanimously affirmed, without costs.
We reject Empire's argument that the McHales's election of arbitration to resolve their claimfor uninsured motorist benefits as against their insurer, Liberty, and the ultimate settlement ofthat claim, preclude their maintenance of this action against the alleged tortfeasors. Roggio vNationwide Mut. Ins. Co. (66 NY2d 260 [1985]), relied on by Empire, held only that thedenial of medical benefits in an arbitration award precluded the claimant from litigating in thecourts his right to reimbursement for later medical bills arising out of the same accident.Furthermore, the settlement agreement shows that the McHales and Liberty intended that anyfuture recovery by the McHales in a subsequent action against a third party would be assigned toLiberty in an amount up to $725,000. The agreement contains no restrictions on future litigationagainst third parties or the amount of a future award, and it does not address issues of liability(see Brink v Killeen, 48 AD2d 823 [1975]).
Empire's claim that plaintiffs lack standing to maintain the action by virtue of the settlementwith Liberty was not raised in their answer and therefore was waived (CPLR 3211 [e]; [*2]seeWells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-243 [2007]); itsclaim of judicial estoppel is also unpreserved and without merit. Concur—Saxe, J.P.,Catterson, DeGrasse and Abdus-Salaam, JJ.