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Jimenez v. New York Central Mutual Fire Insurance Co.

March 2, 2010

DORIS JIMENEZ, RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, APPELLANT.



In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the defendant appeals from (1) so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated June 20, 2007, as denied that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), (2) a judgment of the same court entered January 2, 2008, which, upon an order of the same court entered January 2, 2008, granting the plaintiff's cross motion for summary judgment on the complaint, is in favor of the plaintiff and against it in the principal sum of $32,382.50, and (3) a judgment of the same court entered June 2, 2008, which, upon the order entered January 2, 2008, and upon an order of the same court entered May 6, 2008, granting its motion to vacate the judgment entered January 2, 2008, and to limit the plaintiff's recovery to the sum of $25,000, is in favor of the plaintiff and against it in the principal sum of $25,000, and the plaintiff cross-appeals from the judgment entered June 2, 2008, on the ground of inadequacy.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and SANDRA L. SGROI, JJ.

(Index No. 7983/07)

DECISION & ORDER

ORDERED that the appeal from the order dated June 20, 2007, is dismissed; and it is further,

ORDERED that the appeal from the judgment entered January 2, 2008, is dismissed as academic, as that judgment was vacated by the order entered May 6, 2008; and it is further,

ORDERED that the judgment entered June 2, 2008, is reversed, on the law, the plaintiff's cross motion for summary judgment on the complaint is denied, the orders entered January 2, 2008, and May 6, 2008, are modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith; and it is further,

ORDERED that the cross appeal is dismissed as academic in light of our determination on the appeal from the judgment entered June 2, 2008; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the intermediate order dated June 20, 2007, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment entered June 2, 2008 (see CPLR 5501[a][1]).

In an underlying action to recover damages for injuries arising from a motor vehicle accident, the plaintiff obtained a default judgment against Roxana Sanchez in the amount of $32,382.50. The plaintiff thereafter commenced the instant action pursuant to Insurance Law § 3420(a)(2) against Sanchez's insurance carrier, the defendant, New York Central Mutual Insurance Company (hereinafter NYCM), to recover on the unsatisfied judgment. Although the plaintiff did not give NYCM notice of the underlying action against its insured until after the default judgment had been entered, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint in the instant action. We reverse.

A plaintiff may only commence a direct action against an insurer to recover on an unsatisfied judgment entered in a negligence action "at the expiration of thirty days from the serving of notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer" (Insurance Law § 3420[a][2]), and this requirement is a condition precedent to the commencement of a direct action against the insurer (see Lang v Hanover Ins. Co., 3 NY3d 350, 352; Guayara v Hudson Ins. Co., 48 AD3d 628; Best v Progressive Cas. Ins. Co., 29 AD3d 503).

Although the plaintiff met her prima facie burden of establishing that she satisfied this condition precedent by submitting an affidavit of service attesting that a copy of the judgment in the underlying personal injury action (hereinafter the underlying judgment), with notice of entry, was mailed to NYCM on February 13, 2007 (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344), a hearing is required on the issue of service since NYCM rebutted the presumption of proper service. Specifically, NYCM submitted the affidavit of its claims manager denying that it received a copy of the underlying ...


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