This is an interesting action; not so much for the merits but from a procedural point of view. The plaintiff, Ford Motor Credit Company, (hereinafter referred to as Ford) brought this breach of contract action as a result of the defendants, Ms. Hutton and her former husband, Mr. Orens, alleged failure to make payments under the terms of an automobile lease; and subsequent extension of that agreement. Those agreements list Mr. Orens as the signor of the agreements, and Ms. Hutton as the [*2]guarantor. Following a default on the lease, Ford had the vehicle repossessed and sold at auction. Since that sale was insufficient to make Ford whole under the terms of the lease agreement and subsequent extension, it commenced this action.

It appears that Mr. Orens was never served in this matter; therefore no jurisdiction was obtained over him in this proceeding. However, Ford initiated another action in this court, against Mr. Orens, apparently based on the same transaction that is the subject matter of this action, seeking an identical dollar amount under Docket No. B85481. Ford served Mr. Orens in that matter and recently entered a default judgment against him for $9,028.09, including interest and costs, on December 2, 2005.

Ford is now moving for summary judgment against Ms. Hutton based on her liability as the guarantor. Ms. Hutton denies signing any of the documents involved in this matter, and claims Mr. Orens was the person who signed her name to the documents at issue. Ms. Hutton is opposing Ford's motion, and requests that Mr. Orens be made a party to this action in order to indemnify her in this matter.

Ms. Hutton has categorically denied signing any of the documents that serve as the basis of Ford's claim by way of an affirmative defense in her answer and in her affidavit in opposition to Ford's motion for summary judgment. Her affidavit goes on to say that Mr. Orens signed her name to the documents at issue. However, her affidavit makes no mention as to whether or not she authorized Mr. Orens to sign the document on her behalf. Therefore, there is question of fact as to whether or not Ms, Hutton is a liable party in this matter. James v. Albank, 307 AD2d 1024, 1025 (2nd Dept., 2003), Cf. Eggleson v. Trustee of General Electric, 238 AD2d 871 (3rd Dept., 1997).

Ford argues that Ms. Hutton's claim that Mr. Orens was the person who signed her name to the documents cannot serve as a basis to oppose summary judgment because she never plead fraud as an affirmative defense. However, summary judgment can be defeated with an un-plead defense, so long as the opposing party is not taken by surprise and is not prejudiced. The fact that Ms. Hutton did not specifically raise fraud as an affirmative defense is of no consequence for this motion; in light of the fact that Ms. Hutton did state as an affirmative defense in her answer that she never contracted with Ford and had no contractual obligation with Ford.Seaboard Surety v. Nigro Bros., 222 AD2d 574 (2nd Dept., 1995), Ouziel v. Baram, 305 AD2d 564, 565 (2nd Dept., 2003).

As for Ms. Hutton's request to add Mr. Orens as a party; that request is somewhat more problematic in light of the parallel action pending by Ford against Mr. Orens under Docket # B85481. Since personal jurisdiction has already been acquired over Mr. Orens in that action, the apparent remedy would at first seem to be to consolidate the two actions.However, that cannot be done because Ford has already obtained a default judgment against Mr. Orens in the parallel action; and there can only be one judgment in any civil matter unless there is a severance. Conrad v. Westchester, 259 AD2d 724, 725 (2nd Dept., 1999). Since severance would be required to allow Ford to maintain its judgment and collection efforts against Mr. Orens; consolidation is not a realistic option.

However, the court believes that a third-party action by Ms. Hutton against Mr. Orens for indemnification would be the proper remedy. Such relief would not violate the "one judgment rule, " it would allow Ford to maintain its judgment and continue with its collection efforts against Mr. Orens, it would not allow for an inconsistent verdict against any of the parties and it is in no way [*3]prejudicial to Mr. Orens.

While not specifically requested, such relief is appropriate in light of Ms. Hutton's prayer for "such other and further relief as the court deems just and proper" under the authority of Matter of Daniel v. MVAIC, 181 Misc 2d 941, 954-955 (1999), UCCA 202, CPLR 1007, CPLR 3011 & CPLR 3017.

However, since Mr. Orens has never appeared in this matter, personal jurisdiction will have to be acquired over him before Ms. Hutton's third-party action will be allowed to proceed, wherefore;

IT IS HEREBY ORDERED, that Ford's motion for summary judgment is denied, and Ms. Hutton's motion to add Mr. Orens, as a third-party defendant is hereby granted.

This decision constitutes the order of this Court.

Hon. David M. Manz

Buffalo City Court Judge

Dated: March 13, 2006