| DaimlerChrysler Ins. Co. v Jenneman |
| 2012 NY Slip Op 03587 [95 AD3d 928] |
| May 8, 2012 |
| Appellate Division, Second Department |
| DaimlerChrysler Insurance Company, as Subrogee of DCFS Trust,Respondent, v Leslie W. Jenneman, Appellant. |
—[*1] Gordon & Haffner, LLP, Harrison, N.Y. (David Gordon of counsel), forrespondent.
In an action to recover a settlement payment made in an underlying action to recoverdamages for wrongful death, the defendant appeals from an order of the Supreme Court, SuffolkCounty (Farneti, J.), dated May 5, 2010, which granted the plaintiff's motion for summaryjudgment on the complaint.
Ordered that the order is affirmed, with costs.
The defendant, Leslie W. Jenneman, leased a Jeep Grand Cherokee from nonparty DCFSTrust. The plaintiff, DaimlerChrysler Insurance Company, as subrogee of DCFS Trust, providedinsurance coverage to DCFS Trust. While driving the Grand Cherokee on November 20, 2002,Jenneman struck and killed a pedestrian. She was convicted of manslaughter in the seconddegree, and this Court affirmed (seePeople v Jenneman, 37 AD3d 736 [2007]). The pedestrian's estate sued Jenneman andDCFS Trust for wrongful death, and that case was settled for $200,000. The plaintiff paid$100,000 of that settlement and subsequently commenced this action against Jenneman torecover the sum it paid toward the settlement, alleging that it became subrogated to DCFS Trust'sright to common-law indemnification from Jenneman. The plaintiff moved for summaryjudgment on the complaint on the ground that Jenneman's affirmed conviction entitled it tojudgment as a matter of law. In an order dated May 5, 2010, the Supreme Court granted theplaintiff's motion for summary judgment on the complaint. Jenneman appeals, and we affirm.
"[T]he key element of a common-law cause of action for indemnification is not a dutyrunning from the indemnitor to the injured party, but rather is 'a separate duty owed theindemnitee by the indemnitor' " (Raquet v Braun, 90 NY2d 177, 183 [1997], quotingMas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]). Indemnity "may be based uponan express contract, but more commonly the indemnity obligation is implied . . .based upon the law's notion of what is fair and proper as between the parties" (Mas v TwoBridges Assoc., 75 NY2d at 690). "Where a criminal conviction is based upon facts identicalto those in issue in a related civil action, the plaintiff in the civil action can successfully invokethe doctrine of collateral estoppel to bar the convicted defendant from [*2]relitigating the issue of . . . liability" (McDonald vMcDonald, 193 AD2d 590, 590 [1993]; see City of New York v College Point Sports Assn., Inc., 61 AD3d33, 41 [2009]).
Here, the plaintiff established, prima facie, that collateral estoppel effect should be given toJenneman's conviction, and that, as subrogee of DCFS Trust, it is entitled to common-lawindemnification from her (see Blaich vVan Herwynen, 37 AD3d 387 [2007]). In opposition, Jenneman failed to raise a triableissue of fact. Therefore, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the complaint.
Jenneman's remaining contentions are without merit. Dillon, J.P., Balkin, Eng and Chambers,JJ., concur.