The defendants move for an order vacating and modifying that portion of the plaintiff's stipulation extending time to appear and answer dated January 21, 2008, which purports to waive the defense of statute of limitations. The plaintiff opposes this motion.

The defendants also move for an order granting them summary judgment against the plaintiff and dismissing the plaintiff's complaint upon the grounds the plaintiff lacks standing and capacity to sue, this subrogation action is barred by the statute of limitations and the defense of release. The plaintiff opposes the motion. The underlying action arises from an April 8, 2003 accident, where Audrey C. Brown was a pedestrian walking on West 29th Street between 7th Avenue and 8th Avenue, in New York County, State of New York, when Brown was allegedly struck and injured by a motor vehicle owned by Euglogia Soto Ruiz, and driven by defendant Jorge Vicente Mora, an employee and parking garage attendant of the defendant 29 Corp. d/b/a West Twenty Ninth Corp.

The attorney for the defendants states, in a supporting affirmation dated March 20, 2008, the defense of statute of limitations is meritorious, and the defendants should not be deprived of the opportunity to raise it solely because their attorney inadvertently and [*2]mistakenly failed to notice a waiver had been included in a stipulation seeking an extension of time to answer. The attorney for the defendants asserts no extension was actually needed because the plaintiff's counsel had by a letter dated January 14, 2008, actually extended the time to answer to February 14, 2008. The attorney for the defendants avers the mistake was discovered and brought to the attention of the plaintiff's attorney as soon after it occurred, so the plaintiff could not have suffered any prejudice, and will not suffer any prejudice if that portion of the plaintiff's stipulation extending time to appear and answer dated January 21, 2008, which purports to waive the defense of statute of limitations is vacated and modified.

The plaintiff's attorney states, in an affirmation dated April 4, 2008, the facts, as detailed in this affirmation, do not warrant vacating and modifying that portion of the plaintiff's stipulation extending time to appear and answer dated January 21, 2008, which purports to waive the defense of statute of limitations. The plaintiff's attorney asserts the defense of statute of limitations is meritless as a matter of law. The plaintiff's attorney points out the two stipulations to extend the time to answer were drafted by the defense counsel.

The attorney for the defendants states, in a reply affirmation dated April 18, 2008, while the plaintiff attorney's recitation of the facts in the affirmation dated April 4, 2008, regarding the preparation of the stipulation is for the most part, correct, there are certain significant misstatements and erroneous speculations. The attorney for the defendants challenges, in detail, the plaintiff's assertions the defense knowingly and intentionally waived the statute of limitations defense, and its inclusion in the stipulation was not a mistake. The attorney for the defendants contends the plaintiff does not even allege nor demonstrate the plaintiff will be prejudiced by granting the defendants the requested relief. The attorney for the defendants asserts the plaintiff can move to dismiss this defense on the merits pursuant to CPLR 3212, or oppose the defense motion seeking dismissal of the complaint.

The attorney for the defendants states, in a supporting affirmations dated March 20, 2008 and April 7, 2008, the plaintiff's action seeks to recover $47,544.00 allegedly paid to Brown by the plaintiff as personal injury protection, to wit no-fault benefits. The attorney for the defendants claims, although the title identifies the plaintiff as subrogee of Eulogia Soto Ruiz, the payment which the plaintiff seeks to recover was allegedly made solely to Audrey Brown, a pedestrian struck by Ruiz's vehicle which is alleged to have been insured by the plaintiff. The attorney for the defendants points out this action was commenced by filing the summons and complaint on September 12, 2007, brought against the owner of the garage to whom the vehicle was entrusted by Ruiz, and the garage owner's employee, who operated the vehicle at time of the accident. The attorney for the defendants states, as alleged in the complaint, the plaintiff contends pursuant to Insurance Law Article 51of the New York State the defendants were non-covered persons thus giving the plaintiff a right of subrogation under that law, and the plaintiff has been subrogated to the rights of the subrogor Brown to collect $47,544.00 from the offending parties, to wit the defendants. [*3]The attorney for the defendants indicates a motion dated January 21, 2008, brought by an order to show cause is presently pending before this Court seeking an order vacating or modifying that portion of the plaintiff' stipulation extending time to appear or answer. The attorney for the defendants requests, in the event that motion is granted, this Court considered the merits of that defense upon this motion, and grant summary judgment, otherwise the Court grant summary judgment on the basis of the defense of general release and lack of capacity and standing to sue.

The attorney for the defendants states the plaintiff alleges, in paragraph 1 of the complaint, the plaintiff was a foreign corporation authorized to do business in the State of New York doing business in the County of Nassau. The attorney for the defendants states a search of the database of the Department of State, Division of Corporations disclosed no corporation named G.E.I.C.O. exists. The attorney for the defendants states a search of the database of the New York State Insurance Department revealed no insurance company bearing that name is authorized to engage in the business of insurance in the State of New York. The attorney for the defendants contends only an existing entity may bring a lawsuit, so the plaintiff lacks standing to bring this lawsuit.

The attorney for the defendants points to a copy of a general release issued by the plaintiff's purported subrogor in settlement of that action, and contends that release is unconditional, unreserved and unlimited, and a complete bar to this action. The attorney for the defendants contends, as a matter of law, a subrogee stands in the shoes of the subrogor with no greater rights than the subrogor.

The attorney for the defendants contends the action is governed by the same three year prescriptive period under the statue of limitations as applicable to the subrogor's claim. The attorney for the defendants contends the accident out of which this action arose occurred on April 3, 2003, but the action was not commenced until almost four and one-half years later on September 12, 2007.

The plaintiff's attorney states, in an affirmation dated April 23, 2008, this subrogation action, brought pursuant to Insurance Law § 5104 (b), arises from the negligence of the defendant garage owner and the garage employee. The plaintiff's attorney states the plaintiff's subrogor, Eulogia Soto Ruiz's vehicle was parked at the defendant's garage by its attendant, and while this vehicle was in the care, custody and control of the defendants, the employee operating this vehicle struck the plaintiff's subrogor Audrey C. Brown, a pedestrian injuring her. The plaintiff's attorney states the plaintiff paid personal injury protection benefits, and seeks to recover those benefits from the defendant tortfeasors.

The plaintiff's attorney maintains G.E.I.C.O. is an acronym for Government Employees Insurance Company, and a search of the Department of State Division of Corporations indicates it is a Maryland corporation. The plaintiff's attorney asserts the New York State Insurance Department database recognizes Government Employees Insurance Company as a Maryland corporation assigned insurance code 148 with a host of insurance writing powers in the State of New York. The plaintiff's attorney opines, based upon these [*4]circumstances, there can be no question the plaintiff is an existing entity, and therefore has standing bringing this lawsuit.

The plaintiff's attorney asserts these defendants had actual knowledge of the instant subrogation claim of the plaintiff on or about March 12, 2004. The plaintiff's attorney points out on March 12, 2004, the plaintiff filed an inter-company PIP loss transfer arbitration against the respondent, Greater New York Mutual Insurance Company, the insurer of the defendants, seeking to recover those same benefits which the plaintiff seeks to recover here. The plaintiff's attorney notes Greater New York Mutual Insurance Company, in that arbitration proceeding, requested a deferment of the arbitration on June 1, 2004, and the arbitration was adjourned to allow Greater New York Mutual Insurance Company time to send payment for the deferment request. The plaintiff's attorney avers that affirmative act by Greater New York Mutual Insurance Company on behalf of its insureds, these defendants, was an acknowledgment of actual notice of this claim, and was an affirmative act indicating participation in the defense of the claim. The plaintiff's attorney states the settlement of the personal injury case of Audrey C. Brown, the plaintiff's subrogor, by Greater New York Mutual Insurance Company, on behalf of the its insureds, the defendants did not extinguish the plaintiff's subrogation claim. The plaintiff's attorney contends, as a matter of law, where a release has been obtained by a tortfeasor from an insured after the insured has already received payment from its insurer, the right of the insurer to recover from the third party tortfeasors exists only where it can be demonstrated that at the time the third party tortfeasor settled with the insured, the third party tortfeasor knew or possessed information which if reasonably pursued would have given it knowledge of the plaintiff's status as an insurer of the party whose property was damaged, and the insurer by payment had been subrogated to the claim against the tortfeasor.

The plaintiff's attorney avers consideration of the merits of the statute of limitations defense in this motion is premature, so this issue should not be entertained now. The plaintiff's attorney indicates the Court has not decided the defendant's order to show cause which sought to vacate the stipulation extending the time to answer entered by the defendants waiving the affirmative defense of the statute of limitations. The plaintiff's attorney requests, should the Court decide to entertain the issue of the statute of limitations, the Court direct attention to the Court of Appeals case of Safeco Insurance Company v. Jamaica Water Supply Company (83 AD2d 427 [2nd Dept, 1981], aff'd 57 NY2d 994 [1982]), which is analogous to the instant case, and that Court determined the insurer was entitled to sue for first party benefits within three years after the completion of two years after the injury. The plaintiff's attorney notes the injured Brown commenced an action against the defendants by summons and verified complaint dated May 15, 2003. The plaintiff's attorney maintains a review of those pleadings indicates the plaintiff's subrogee did not sue for basic economic loss in that action. The plaintiff's attorney contends the instant action was timely commenced on September 12, 2007, well within three years from the expiration of the two year period from the date of the injury.

The attorney for the defendants states, in a reply affirmation dated April 28, 2008, [*5]the plaintiff concedes G.E.I.C.O. is an acronym with no separate jural existence, to wit a corporation, registered trade name nor filed certificate of doing business. The attorney for the defendants disagrees with the plaintiff's position, and perceives no authority supporting such contention, and states, as a matter of law, a nonexistent party cannot be aggrieved since it lacks standing to sue. The attorney for the defendants asserts the plaintiff's contention, G.E.I.C.O. is an acronym for Government Employees Insurance Company pointing to that company being recognized in New York, assigned Code 148, with a host of writing powers in New York, is based on speculation and assumption. The attorney for the defendants avers, as the documents submitted under plaintiff's exhibit B, particularly the arbitration forms NY PIP-Form, to the plaintiff counsel's affirmation demonstrate, the insurer which purportedly made the payment sought to be recovered is Government Employees Insurance Company, and according to plaintiff's exhibit A is a Maryland corporation assigned Code 639. The attorney for the defendants notes there are two other corporations with names beginning with Geico, not G.E.I.C.O., to wit Geico Casualty Company (101) and Geico Indemnity Company (100). The attorney for the defendants states, since Government Employees Insurance Company (148) never made any payment to Brown, and it was not Ruiz's insurer, it has absolutely no standing to bring this purported subrogation action.

The attorney for the defendants states the plaintiff's contention, the defense of release lacks merit because the defendants knew, or should have known the plaintiff had been subrogated to the rights of the releasor before the release was given, rests upon a faulty premise. The attorney for the defendants states, as a matter of law, the flaw in the plaintiff's contention is not the statement of the legal principle, but the awareness of its application. The attorney for the defendants opines the cases cited by the plaintiff's counsel to support the plaintiff's arguments all deal with an insurer's subrogation rights, however the plaintiff's rights are not subrogation rights. The attorney for the defendants contends the statute, pursuant to which the plaintiff seeks to recover the amounts paid, affords the plaintiff a lien against the injured parties' recovery from the tortfeasor, not a subrogation. The attorney for the defendants states opines the plaintiff's reliance on certain case law authority is misplaced because the Safeco court carefully stated where the insured did not seek to recover for basic economic loss in the action against third parties, the insurer has three years from the expiration of the two year period from the date of the injury within which to sue. The attorney for the defendants points out here the insured did sue well within the initial two year period thereby divesting the insurer of any right to sue separately to recover on account of the lien, and rendering inapplicable the extended period.

This Court has carefully reviewed and considered all of the parties' papers submitted on both motions. The Second Department holds:

The court did not err in granting the plaintiffs' motion to strike the defendant's second affirmative defense, asserting the Statute of Limitations, based upon the parties' written stipulation which extended the defendant's time to answer the complaint on the condition that all affirmative defenses [*6]were waived. Although the stipulation was not actually signed by the defendant (see, CPLR 2104), it was prepared by the defendant's attorney and proffered to the plaintiffs' attorney. The plaintiffs' attorney executed the stipulation without modification and returned it to the defendant's attorney. Under these circumstances, we conclude that the terms of the stipulation are binding upon the defendant despite the absence of the defendant's signature or that of his attorney (cf., Klein v. Mount Sinai Hosp., 61 NY2d 865).

When parties enter into a preliminary agreement, anticipating that a more formal contract will be executed later, the contract is enforceable if it embodies all the essential terms of the agreement (see Pescatore v. Manniello, 19 AD3d 571, 799 NYS2d 220; Sabetfard v. Djavaheri Realty Corp., 18 AD3d 640, 795 NYS2d 643). Furthermore, an exchange of correspondence between counsel may constitute a binding stipulation pursuant to CPLR 2104 (see Roberts v. Stracick, 13 AD3d 1208, 787 NYS2d 591; Gaglia v. Nash, 8 AD3d 992, 778 NYS2d 595)

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649; Greenberg v Manlon Realty, 43 AD2d 968, 969)

Accordingly, both motions are denied.

So ordered.

Dated: June 18, 2008 [*7]

E N T E R:

______________________________

J. S. C.