Kilduff v. Donna Oil Corp.

Mangano, J.,

concurs in part and dissents in part, with the following memorandum: I agree that the appeal from the order must be dismissed because no appeal lies from an order denying a motion to reargue a decision. However, I would modify the judgment by reinstating so much of the complaint as seeks relief (1) for pain and suffering and other nonmone*564tary detriment caused by injuries to plaintiff Paula Kilduffs (hereinafter plaintiff) left shoulder and back incurred in the March 7, 1974 automobile accident, and (2) for damages to her automobile. While collateral estoppel is applicable to issues resolved by arbitration (see Rembrandt Inds. v Hodges Int., 38 NY2d 502), the doctrine only attaches to final judgments on the merits. In the case at bar, so much of the arbitrator’s decision as denied plaintiff’s no-fault claim for left shoulder and back injuries "without prejudice” to a renewal upon the submission of certain evidence is not a final judgment on the merits. The court should adopt a reasonable interpretation of the words "without prejudice”. I disagree with the majority that the decision of the arbitrator intended to limit plaintiff to a renewal of her claim in arbitration. In my view, the option to return must also be construed to provide the claimant with the option to pursue the undecided matters in court (see Giglio v Haber, 19 AD2d 793; see, also, Hansen v City of New York, 299 NY 136). In my opinion, plaintiffs may not recover for medical purposes. That part of their claim is barred by subdivision 1 of section 673 of the Insurance Law which bars recovery for "basic economic loss” in a negligence action between "covered persons” under the no-fault statutes. However, the plaintiffs are not barred from recovering for "non-economic loss” if they can establish that the accident caused "serious injury” (see Insurance Law, § 671, former subd 4; see, also, Insurance Law, § 673, subd 1). The plaintiff may also recover for damage to her automobile.