| Mose v Sangiovanni |
| 2011 NY Slip Op 04218 [84 AD3d 1041] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Peter Mose, Appellant, v Cori Sangiovanni et al.,Respondents. |
—[*1] Law Offices of Brian J. McGovern, LLC, New York, N.Y. (Michelle A. Cohen of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Jones, Jr., J.), dated April 8, 2010, which granted thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) as barred by thestatute of limitations.
Ordered that the order is affirmed, with costs.
This action arises out of a motor vehicle accident that occurred on July 4, 2006. On July 23,2008, the plaintiff, who was involved in the accident, demanded uninsured motorist arbitrationfrom his insurance carrier, Allstate Insurance Company (hereinafter Allstate). Subsequently,Allstate commenced a proceeding to stay the arbitration pursuant to CPLR article 75. The paperssubmitted by the plaintiff in that proceeding indicated that the plaintiff's vehicle collided with aChevrolet pickup truck registered to the defendant Cori Sangiovanni, and insured by ClarendonNational Insurance Company (hereinafter Clarendon). On December 2, 2008, the Supreme Courtamended the petition to add Sangiovanni and Clarendon as additional respondents in the CPLRarticle 75 proceeding. Further, the Supreme Court granted Allstate's petition for an order stayingthe arbitration "only to the extent that a hearing shall be conducted . . . to determinewhether the vehicle owned and operated by . . . Sangiovanni, was insured on thedate of the accident."
On July 30, 2009, the date the framed-issue hearing was supposed to take place, Clarendonadmitted before the Supreme Court that it insured Sangiovanni's vehicle on the date of theaccident. The plaintiff's counsel stated that the plaintiff would withdraw his demand forarbitration subject to a finding by the Supreme Court that the statute of limitations in connectionwith the anticipated action would be tolled during the period that the Supreme Court stayed thearbitration pending the subject hearing. Counsel for Clarendon objected to any finding that thestatute of limitations was tolled, and refused to waive any defense based on the statute oflimitations. Without any further argument, the Supreme Court stated that the statute oflimitations was tolled from the initial date of the stay of arbitration until July 30, 2009.
On July 31, 2009, the plaintiff commenced the instant action against Sangiovanni and thedefendant Dillon Cook, who is alleged to have been the driver of Sangiovanni's vehicle(hereinafter together the defendants), to recover damages for personal injuries. The defendantsmoved to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that it was barredby the statute of limitations. The Supreme [*2]Court granted themotion and the plaintiff appeals. We affirm.
Since this action was commenced after the expiration of the applicable three-year statute oflimitations, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) (5) to dismiss the complaint as time-barred (see CPLR 214 [5]; Rinaldi v Rochford, 77 AD3d 720[2010]).
Contrary to the plaintiff's contention, the Supreme Court's finding in the CPLR article 75proceeding that the statute of limitations was tolled is not binding on the defendants in thisaction. "Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in asubsequent action or proceeding an issue clearly raised in a prior action or proceeding anddecided against that party . . . whether or not the tribunals or causes of action are thesame' " (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999], quotingRyan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "The doctrine applies if the issuein the second action is identical to an issue which was raised, necessarily decided and material inthe first action, and the [party] had a full and fair opportunity to litigate the issue in the earlieraction" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349).
The doctrine of collateral estoppel is inapplicable here because the Supreme Court's findingthat the statute of limitations was tolled was a gratuitous finding that was not material to adetermination of the CPLR article 75 proceeding (see United Servs. Auto. Assn. v Meier,112 AD2d 288 [1985]; Siegel, NY Prac § 465, at 781 [4th ed]). Furthermore, neitherCook, who was not a party to the CPLR article 75 proceeding, nor Sangiovanni, had a full andfair opportunity to litigate the statute of limitations issue (see Leung v Suffolk Plate Glass Co., Inc., 78 AD3d 663 [2010]).
The plaintiff's remaining contentions are without merit. Dickerson, J.P., Eng, Hall andRoman, JJ., concur.