Argued February 14, 2008; decided December 16, 2008

Gaston v American Tr. Ins. Co., 40 AD3d 578, modified.

APPEARANCES OF COUNSEL

Marjorie E. Bornes, New York City, for appellant.

William D. Fireman, P.C., New York City (William D. Fireman and Steven Herschkowitz of counsel), for respondents.

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying plaintiffs' motion for summary judgment and, as so modified, affirmed. [*2]

In this Insurance Law § 3420 action, defendant insurer should not have been collaterally estopped from litigating the issue of whether the car that collided with the bus in which the injured plaintiffs were traveling was insured on the date of the accident. Three prior judgments involving different parties' claims arising from the same bus accident were submitted to the court. The plaintiffs^[FN*] proffered two default judgments that resolved the coverage issue against the insurer while the insurer demonstrated that the same coverage question had been adjudicated in a third proceeding resulting in a judgment in the insurer's favor. In light of these conflicting judgments on the same issue, application of the doctrine of collateral estoppel was{**11 NY3d at 868} not warranted (see Restatement [Second] of Judgments § 29 [4]). Since plaintiffs' arguments in opposition to the insurer's cross motion for summary judgment were not addressed by either of the courts below, we decline to grant the insurer's cross motion for summary judgment.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order modified, etc.