73 A.D.2d 787
N.Y. App. Div.
1979

— Order unanimously aflirmed; defendant Motor Vehicle Accident Indemnification Corporаtion’s motions for summary judgment against plaintiffs and defendant the Royal Globe Insurance Cоmpany denied, all without costs. Memorandum: In this action for declaratory judgment, the only order before us on appeal is that which granted the motions of defendants Rоyal Globe Insurance Company (Royal Globe) and Atlantic Mutual Insurance Compаny (Atlantic Mutual) for summary judgment and dismissed ‍​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‍plaintiffs’ complaint as against them. For reasons unеxplained in its memorandum decision, Special Term declined to decide the сross motion of defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) for summary judgment dismissing the complaint, or its motion for summary judgment on its cross claim against defendant Royal Globe. Thus plaintiffs’ action for declaratory judgment against MVAIC remains рending, as does MVAIC’s cross claim against Royal Globe (see Secor v Levine, 273 App Div 899; cf. 3 Weinstein-Korn-Miller, NY Civ Prac, par 3019.32). On appeal no viable claim is urged against Atlantic Mutual by either plaintiffs оr MVAIC, and thus the order granting its motion for summary judgment should be affirmed. On August 5, 1976 the infant plaintiff, Ronald Potter, wаs injured on private property when a go-cart which he was operating collided with an unregistered, uninsured motorcycle operated by James Vitigello, also аn infant. Two automobiles owned by Ronald’s parents were insured by Royal Globe under a рolicy which contained a mandatory uninsured motorist endorsement (see Insurance Law, § 167, subd 2-a). ‍​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‍Plaintiffs filed a notice of intention tp make claim against MVAIC and after being advised by MVAIC that recourse should be had against Royal Globe, plaintiffs sought arbitration of thе claim against that insurer. Thereupon Royal Globe moved to stay arbitration and Special Term granted the motion upon its finding that the infant was not an "insured” under Royal Globе’s policy. Plaintiffs then brought this action for declaratory judgment, seeking to determine the relative liabilities of the parties. Royal Globe moved for summary judgment on the ground that the prior determination of the motion to stay arbitration was res judicata, Special Term found, and we agree, that the order staying *788arbitration, from which no appeal was taken, was res judicata with respect to рlaintiffs’ claim here against Royal Globe. We find no merit to the argument of plaintiffs and MVAIC thаt the question of whether the infant Ronald was an "insured” under the uninsured motorist endorsement оf the Royal Globe policy was not decided on the motion to stay arbitration. Thаt specific issue was presented to the court in both the moving and answering paрers submitted on the motion and indeed, ‍​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‍the court’s order thereon specifically addresses the issue. Moreover, the same Judge, sitting at Special Term, decided both thе motion for the stay of arbitration and the motion here under review. While we agreе that the court erred in holding that the infant Ronald was not an "insured” under the Royal Globe рolicy (see Insurance Law, § 601, subd i; § 167, subd 2-a), the finding of no coverage nonetheless is res judicata as to plaintiffs (see Schwartz v Public Administrator of County of Bronx, 24 NY2d 65). Special Term, despite its earlier erroneous finding, properly granted summary ‍​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‍judgment tо Royal Globe. The earlier determination, however, is not res judicata as to MVAIC (see Matter of Wallace v MVAIC, 25 NY2d 384, 388; MVAIC v National Grange Mut. Ins. Co., 19 NY2d 115). MVAIC is not entitled to relitigatiоn of the issue of plaintiffs’ status, however, unless it can demonstrate that the ‍​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​‌​​‌‌‌‌‌​‌‌‌​‌‌‌‌‌​‌‌​​‌​‌​‍prior adjudiсation was not "the result of fully contested litigation and devoid of taint of collusion оr default” (Matter of Wallace v MVAIC, supra, p 388). That was precisely the circumstance in MVAIC v National Grange Mut. Ins. Co. (supra), where the indemnification corporation was permitted to make сlaim against the insurer because the prior adjudication of the injured party’s status was the product of a default judgment on behalf of the insurer. Here plaintiffs have donе all which could reasonably have been expected of them in pursuit of Ronаld’s claim. In both the prior proceeding and here, they have vigorously argued that Ronald is an "insured” under the Royal Globe policy. We will not now subject that issue to further litigation solely on the basis that Special Term made an error of law in its initial determinatiоn. MVAIC’s motions for summary judgment against plaintiffs and against Royal Globe should be denied. Although MVAIC has not demonstrated that the infant Ronald is not otherwise a "qualified person” within the meaning оf subdivision b of section 601 of the Insurance Law, we decline to grant summary judgment to plaintiffs because it does not appear that MVAIC has waived the jurisdictional issue (CPLR 3211, subd [a], par 8) raised in its answer (see CPLR 320, subd [b]). (Appeal from order of Onondaga Supreme Court—dismiss complaint.) Present—Dillon, P. J., Cardamone, Schnepp, Callahan and Witmer, JJ.