CORTEZ v. COUNTRYWIDE INSURANCE CO (2005)

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 29, 2002, which, upon granting, in part, the plaintiff's motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $229,815.

ORDERED that the judgment is reversed, on the law, with costs, the motion is denied, upon searching the record, summary judgment is awarded to the defendant, and the complaint is dismissed.

Several years before he commenced the instant action, the plaintiff, who was involved in an automobile accident, commenced an arbitration proceeding against the defendant to recover no-fault benefits he alleged had been improperly denied (see Insurance Law § 5106[b] ).  By electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits to which he was allegedly entitled as a result of that accident (see Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260, 263-264, 496 N.Y.S.2d 404, 487 N.E.2d 261;  Gaul v. American Employers' Ins. Co., 302 A.D.2d 875, 753 N.Y.S.2d 782;  Mack v. State Farm Mut. Auto. Ins. Co., 251 A.D.2d 1083, 675 N.Y.S.2d 575;  Gibeault v. Home Ins. Co., 221 A.D.2d 826, 633 N.Y.S.2d 678).

Although the defendant did not move for summary judgment dismissing the complaint on the ground that the plaintiff was precluded from maintaining this action, this court has the authority pursuant to CPLR 3212(b) to search the record and award summary judgment to a nonmoving party with respect to a cause of action or issue that was the subject of the motion before the Supreme Court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-111, 472 N.Y.S.2d 592, 460 N.E.2d 1077).   Under the circumstances of this case, as it is clear that the plaintiff is precluded from maintaining this action, we award summary judgment to the defendant and dismiss the complaint.

In light of our determination, we need not reach the defendant's remaining contentions.