SANTO v. GOVERNMENT EMPLOYEES INSURANCE CO GEICO (2006)

In an action to recover no-fault benefits under an insurance contract brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brennan, J.), dated August 10, 2005, as denied her motion for summary judgment in lieu of complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Because the plaintiff's action was not based upon an instrument for the payment of money only, it was improperly commenced by motion for summary judgment in lieu of complaint (see CPLR 3213;  New York Cent. Mut. Fire Ins. Co. v. Danaher, 290 A.D.2d 783, 784 n. 3, 736 N.Y.S.2d 195;  cf. Hellert v. Travelers Ins. Co., 52 A.D.2d 751, 382 N.Y.S.2d 203).   Nonetheless, since the issues in dispute were fully submitted by the parties, the Supreme Court properly disposed of the motion on the merits (see Schulz v. Barrows, 94 N.Y.2d 624, 628, 709 N.Y.S.2d 148, 730 N.E.2d 946;  New York Cent. Mut. Fire Ins. Co. v. Danaher, supra;  see also CPLR 103[c];  Miller v. North Shore Towers Assoc., 119 Misc.2d 644, 463 N.Y.S.2d 1001).

 With respect to the merits, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law in connection with her cause of action alleging that the defendant insurer is collaterally estopped from rejecting her claim for no-fault benefits. In order to invoke collateral estoppel against the defendant, the plaintiff must demonstrate that a pending issue was raised, that it was necessarily decided and material in a prior action, and that the party to be estopped had a full and fair opportunity to litigate the issue in the earlier action (see Bansbach v. Zinn, 1 N.Y.3d 1, 10, 769 N.Y.S.2d 175, 801 N.E.2d 395;  Pinnacle Consultants v. Leucadia Natl. Corp., 94 N.Y.2d 426, 431-432, 706 N.Y.S.2d 46, 727 N.E.2d 543;   Matter of Kleiger-Brown v. Brown, 306 A.D.2d 482, 483, 761 N.Y.S.2d 516;   Airco Alloys Div., Airco, Inc. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 81-82, 430 N.Y.S.2d 179).   Here, the underlying liability action was settled, and the issue of whether the accident in which the plaintiff was injured arose from the use and operation of the insured vehicle was never raised or adjudicated.   The defendant is thus not estopped from disclaiming an obligation to pay no-fault benefits to the plaintiff on that ground, particularly where the categories of occurrences covered under the liability provisions of the relevant policy are broader than those covered under the no-fault provisions, and there is no evidence in the record that the defendant, by its conduct, made any actual or implied promises that it would provide no-fault coverage (see Walsh v. Prudential Ins. Co. of Am., 101 A.D.2d 988, 477 N.Y.S.2d 473, affd. 64 N.Y.2d 1053, 489 N.Y.S.2d 902, 479 N.E.2d 247).

 In addition, the plaintiff failed to sustain her burden of establishing, as a matter of law, that her accident, which occurred when she slipped and fell on an icy sidewalk while attempting to walk around a parked vehicle owned by the defendant's insured, arose from the use and operation of that vehicle (see Matter of Transcontinental Ins. Co. v. Hampton, 10 Misc.3d 1056(A), 2005 WL 3322842;  Pavone v. Aetna Cas. & Sur. Co., 91 Misc.2d 658, 661, 398 N.Y.S.2d 630;  see generally Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211, 215, 644 N.Y.S.2d 133, 666 N.E.2d 1046;  Matter of New York Cent. Mut. Fire Ins. Co. [Hayden ], 209 A.D.2d 927, 619 N.Y.S.2d 910).

The parties' remaining contentions are either academic or without merit.