Phillips v. Presswood , 395 N.Y.S.2d 693 ( 1977 )

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated December 20, 1976, which granted plaintiff’s motion to strike that portion of his answer which denied his involvement in the accident. Order reversed, without costs or disbursements, and motion denied. Plaintiff-respondent commenced this action based upon defendant-appellant’s negligence in the operation of his car, claiming $250,000 in damages. Contemporaneously, plaintiff proceeded under the "no-fault” provisions of article 18 of the Insurance Law solely against defendant’s insurer, which had failed to honor plaintiff’s claim, and he demanded arbitration. A motion to stay arbitration was denied in New York County. The arbitration proceeding, of which defendant was not a party, culminated in an award in favor of plaintiff in the amount of $4,547.55, with interest, plus $1,728 as a counsel fee. That award was confirmed in the Supreme Court, New York County. Plaintiff then moved to strike that portion of defendant’s answer herein which denied involvement of either his car or himself in the accident, on the ground that the determination of the arbitrator that defendant and his car were involved was res judicata. The motion was granted, without opinion, and defendant has appealed. Under the circumstances, wherein all matters not denied are deemed admitted, we believe that defendant would be seriously prejudiced by his inability at the trial to attempt to assert his noninvolvement in the accident. He had no interest in the outcome of the "no-fault” arbitration proceeding and, in all equity, is entitled to a trial by jury wherein his defenses can be heard. Hopkins, J. P., Martuscello, Margett and O’Connor, JJ., concur.