Davey v. DeMenna , 702 N.Y.S.2d 300 ( 2000 )

—Order, Supreme Court, New York County (Joan Madden, J.), entered July 23, 1998, which, inter alia, denied defendant Leonard DeMenna’s cross motion to dismiss plaintiffs complaint pursuant to CPLR 3211 (a) (5), unanimously affirmed, without costs.

Defendant DeMenná’s motion to dismiss the complaint as against him on the ground that plaintiff, in pursuing her claim for uninsured motorist benefits, took a position inconsistent with her position in the present litigation was properly denied. Plaintiffs representations at the time of her Motor Vehicle Accident Indemnification Corporation (MVAIC) filing accurately reflected the circumstance that the identity of the hit-and-run driver allegedly responsible for her injuries was not then known to her and should not foreclose her from pursuing a claim to be fully compensated for her injuries against a subsequently identified party. Plaintiffs position in connection with her MVAIC filing was in no way inconsistent with, much less preclusive of, her present claim of having subsequently identified defendant DeMenna as the owner and/or driver of the hit-and-run vehicle (see, Chemical Bank v Aetna Ins. Co., 99 Misc 2d 803, 805). Concur — Ellerin, J. P., Wallach, Lerner, Rubin and Buckley, JJ.