Mayers v. D'Agostino , 447 N.Y.S.2d 926 ( 1982 )

— Judgment, Supreme Court, Bronx County (Patlow, J.), entered May 21, 1980, awarding plaintiff $50,657.94, affirmed, with costs. In August, 1976, plaintiff, while driving his own car, collided with defendants’ vehicle at a Bronx intersection. Thereafter, plaintiff consulted an orthopedist, Dr. Etkind, on eight occasions and incurred expenses of $1,025 for these visits. In the course of this treatment, plaintiff assigned his no-fault insurance claim, then in the amount of $635, to Dr. Etkind. After plaintiff’s carrier refused payment, arbitration proceedings were commenced. The claim was denied on the ground that claimants Etkind and Mayers had failed to prove that the alleged injuries for which plaintiff was treated were causally related to this vehicular accident. Defendants’ primary contention on this appeal is that this arbitral determination precluded plaintiff’s claim in this litigation by virtue of the operation of collateral estoppel. The then prevailing Insurance Law, sections 671 and 674, limited causes of action for personal injury to recover noneconomic loss arising out of negligence in the operation of a motor vehicle to situations in which a personal injury resulted in the “permanent loss of use of a body * * * function” or in which “the reasonable and customary charges for medical *** [and] x-ray * * * services necessarily performed as a result of the injury would exceed five hundred dollars” (L 1973, ch 13, § 1). Defendants argue that the rejection of the $635 claim by the arbitrator should have required the court, as a matter of law, to strike that amount from plaintiff’s medical expenses, reducing such expenses below the statutory threshold amount. This, it is argued, would require dismissal of the complaint. Further, it is claimed that Dr. Etkind’s testimony should have been barred in its entirety as the arbitrator found the injuries which he had treated arid of which he had knowledge were not causally related to the accident. This claim would presumably require reversal and the grant of a new trial as there was trial evidence of the injuries plaintiff suffered in the accident other than the testimony of Dr. Etkind. It is apparent that defendants’ plea for a dismissal of the complaint is flawed. Quite apart from the amount of the necessary medical expenses plaintiff incurred as a result of this accident, the jury found, in response to a specific interrogatory put to it by the court, that the plaintiff had sustained an injury resulting in the permanent loss of the use of a body function. This finding is sufficient under the statute to provide an alternative, independent basis for plaintiff’s cause of action, irrespective of the medical expenses necessarily incurred. The claim that Dr. Etkind should not have been permitted to testify is a broader one. It appears that the argument is that the arbitral determination rejected a causal relationship between the alleged injuries for which Dr. Etkind treated plaintiff and the accident, and that this determination was binding on plaintiff in the civil action, requiring a ruling that the doctor’s testimony was essentially immaterial. We do not accept the contention that this arbitral determination precluded plaintiff’s litigation of any issue in his civil, action. At the outset, we note that while plaintiff was a named party to the arbitration and he had some indirect financial interest in the outcome thereof, as noted by the dissent, his legal interest in that proceeding was nominal as he had already assigned the no-fault claim. More importantly, the adversary party in that proceeding was plaintiff’s insurance carrier. Defendants played no role in the arbitration proceeding. Defendants’ invocation of the doctrine of collateral estoppel is thus offensive in nature, an attempt to utilize an adjudication against plaintiff made in a prior proceeding in which defendants did not participate. We find no mandate in the decisions of the Court of Appeals which would require us to extend the collateral estoppel effect of arbitral determinations to such instances. Indeed, in the leading case of Matter of American Ins. Co. (Messinger— Aetna Cas. & Sur. Co.) (43 NY2d 184, 190) where an arbitral determination was given collateral estoppel effect, the Court of Appeals emphasized: “This is not an instance of issue preclusion in subsequent litigation between different parties, in which the question would be the effect to be accorded a prior determination when the same issue arises in a subsequent proceeding to which one of the former litigants is a party but where the adversaries in the second proceeding are not the same as those in the first proceeding. Therefore our decisions in Schwartz v Public Administrator of County of Bronx (24 NY2d 65) and B. R. DeWitt, Inc. v Hall (19 NY2d 141) are not on point.” It is clear that the standards set forth in the Schwartz case to determine whether plaintiff had a full and fair opportunity to establish his factual propositions in the prior proceeding so as to allow the application of collateral estoppel in the subsequent proceeding do apply to this case. These standards involve “an exploration of the various elements which make up the realities of litigation” Schwartz v Public Administrator of County of Bronx, supra, p 72). On several counts, we conclude that the arbitration proceeding failed to meet the requisite standards. As noted, the plaintiff’s legal interest in the arbitration proceeding was nominal and it is not seriously disputed that it was Dr. Etkind who controlled the presentation of the no-fault claim. Further, while the arbitration proceeding involved a claim of $635 against plaintiff’s insurance carrier, the complaint in this civil action directed against the driver, found to have been actively negligent, sought $250,000. Given the relative insignificance of the prior arbitration proceeding, claimants could not reasonably be expected to prosecute it with the same vigor as this action (Gilberg v Barbieri, 53 NY2d 285, 293). And, of course, the nine-day trial of this action was a far more formal proceeding than the no-fault arbitration. Accordingly, we decline to hold that plaintiff should be bound in this action by the determination of issues made by the arbitrator in the prior proceeding. We have examined defendants’ other points and find them to be of insufficient merit to warrant a new trial. Concur — Birns, J. P., Sandler, Markewich and Fein, JJ.