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Vitale v. Midrox Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 19, 2010

DOMINICK P. VITALE, JR., AS EXECUTOR OF THE ESTATE OF ANNAMAE L. VITALE, DECEASED, AND AS ASSIGNEE OF SALVATORE MATTINA, AND DOMINICK P. VITALE, INDIVIDUALLY AND AS ASSIGNEE OF SALVATORE MATTINA, PLAINTIFFS-APPELLANTS,
v.
MIDROX INSURANCE COMPANY, DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered December 3, 2009 in a breach of contract action. The order, insofar as appealed from, granted defendant an offset of $25,000.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiffs commenced this action pursuant to Insurance Law § 3420 (a) (2) seeking, inter alia, to recover payment on a default judgment that they obtained against defendant's insured, Salvatore Mattina, in the underlying personal injury action. Plaintiffs contend that Supreme Court erred in denying in part their motion for partial summary judgment and in granting in part defendant's cross motion for summary judgment by reducing its liability by $25,000, the amount of the settlement paid by Latina-Niagara Importing Co., Inc. (Latina), a co-defendant in the underlying action. We reject that contention. Although we agree with plaintiffs that defendant was not entitled to such an offset based on Mattina's "equitable share of the damages" under CPLR article 14 inasmuch as Mattina defaulted in the underlying action (General Obligations Law § 15-108 [a]; see generally Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 292), the court properly "allowed an offset pursuant to section 15-108 (a) in the amount of plaintiff[s'] settlement with [Latina]" (Garcea v Battista, 53 AD3d 1068, 1070).

20101119

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