Appeal from an order of the District Court of Nassau County, First District (Norman Janowitz, J.), entered December 23, 2004. The order denied defendants' motion for summary judgment.

Order unanimously affirmed without costs.

In this action seeking recovery through subrogation of an amount paid by an insurance carrier to its insured, stemming from an accident that plaintiff alleges occurred through the negligence of defendants, the court below properly denied defendants' motion for summary judgment dismissing the complaint.

Since it cannot be determined from the moving papers the intent of the insurance carriers or the industry standards with regard to whether the $9,360 payment from defendants' carrier to plaintiff constituted a complete settlement of the matter, an issue of fact exists warranting the denial of defendants' motion. We note that there is no evidence in the record that defendants, due to the apparent near-exhaustion of their coverage, were advised of their right to retain independent counsel (see Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 401 [1981]; City of New York v Clarendon Natl. Ins. Co., 309 AD2d 779 [2003]).
Decision Date: February 09, 2006