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The Rogak Report: 29 April 2004

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    AUTO SUBROGATION CASE SUBMITTED TO COURT WITH STIPULATION OF FACTS WAS DECIDED ON INSUFFICIENT EVIDENCE New York Central Mutual Fire Ins. Co. v. Bellini and
    Message 1 of 1 , Apr 29, 2004
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      AUTO SUBROGATION CASE SUBMITTED TO COURT WITH STIPULATION OF FACTS
      WAS DECIDED ON INSUFFICIENT EVIDENCE

      New York Central Mutual Fire Ins. Co. v. Bellini and Town of
      Hempstead, 773 NYS2d 778 (Appellate Term, 2d Dept 2003)

      Plaintiff insurer sought damages, as subrogee of its insureds, for
      damage to its insureds' auto resulting from a collision between the
      auto and a municipal road sanding vehicle. Pursuant to CPLR 3222,
      the action was tried by District Court of Nassau County based
      on "submitted facts" which were stipulated and agreed to by both
      sides. The stipulated facts indicated that on the date of loss, at
      7:50 AM in February during bad weather, defendant Bellini was
      operating the Town of Hempstead's road sanding truck and was
      spreading sand to prevent snow from accumulating. The insured
      vehicle was behind the sanding truck. The truck backed up and hit
      the front of the insured auto. The Court was asked to decide whether
      the sanding truck was a "hazard vehicle" involved in a "hazardous
      operation" as defined by Vehicle & Traffic Law section 117-a and 117-
      b, and if so, whether the truck was operated in a "reckless" manner.
      The Court, following the Court of Appeals reasoning in Riley v.
      County of Broome, found that the road sanding truck was a hazard
      vehicle engaged in a hazardous operation, and therefore was subject
      to the higher standard of recklessness as opposed to ordinary
      negligence. The Court found, however, that Bellini operated the
      truck in a reckless manner and he and the Town were therefore liable.

      The Appellate Term reversed. In an action based on submitted facts,
      no facts other than those stipulated may be considered by the court.
      The stipulation must cover all points in dispute so as to permit a
      determination of the legal issues without resort to evidence outside
      the stipulation. Where the statement of facts is not sufficient to
      enable the court to render a judgment, the court may dismiss the
      petition without prejudice or to allow the filing of an additional
      statement.

      The Appellate Term held that the facts submitted in this case were
      not sufficient for the court to have made a determination that the
      sanding truck was operated with reckless disregard for the safety of
      others. "The submitted factual statement was too vague to support a
      determination that defendant had intentionally done an act of
      unreasonable character in disregard of a known or obvious risk that
      was so great as to make it highly probable that harm would follow,
      and did so with conscious indifference to the outcome." Since the
      statement of facts here was insufficient, the court should have
      dismissed the petition or permitted the filing of an additional
      statement.

      The matter was remitted back to the District Court to permit the
      parties to stipulate to a more definite statement of facts, or
      failing that, for a dismissal.
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