Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered May 5, 2011.
Ramos v Allstate Ins. Co.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 14, 2013
PRESENT:: PESCE, P.J., WESTON and ALIOTTA, JJ
The order denied plaintiff's motion for summary judgment without prejudice to renewal upon the completion of discovery.
ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff judgment in the principal sum of $25,000.
In this action pursuant to Insurance Law § 3420 (a) (2), plaintiff seeks to recover upon an unsatisfied judgment against defendant's insureds plus the interest that accrued from the date of the entry of the underlying judgment against defendant's insureds. Plaintiff's motion for summary judgment was denied by the Civil Court.
Plaintiff met his prima facie burden of establishing his entitlement to judgment as a matter of law under Insurance Law § 3420 (a) (2). Plaintiff demonstrated that he had served defendant with a notice of entry of the default judgment in the underlying personal injury action by submitting an affidavit of service attesting that a copy of the judgment, with notice of its entry, had been mailed to defendant and its insureds on December 30, 2010. The affidavit of service created a presumption of proper mailing and receipt (see Alejandro v Liberty Mut. Ins. Co., 84 AD3d 1132 ). Plaintiff further alleged that the judgment in the underlying action had remained unsatisfied for 30 days thereafter.
In opposition to the motion, defendant was obligated to present proof in admissible form establishing that a material question of fact exists warranting a trial (see CPLR 3212 [b]; Alejandro, 84 AD3d at 1133). In its opposition papers, defendant did not dispute that plaintiff had made a prima facie showing but simply stated that plaintiff's motion should be denied because plaintiff had failed to respond to defendant's discovery demands. Absent from defendant's opposition papers was an affidavit from someone with personal knowledge of the facts asserting that defendant had not received notice of the commencement of the underlying action until after the entry of judgment against its insureds, so as to entitle defendant to litigate the underlying merits of the case. We note that the answer is not verified and, thus, cannot be considered in place of such an affidavit (see CPLR 105 [u]), and the documents annexed to defendant's opposition papers were likewise insufficient to establish its lack of knowledge of the underlying action so as to raise a triable issue of fact (see Alejandro, 84 AD3d at 1133; Guzman v Nationwide Mut. Fire Ins. Co., 62 AD3d 946 ; cf. German v Geico Gen. Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52228[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant is collaterally estopped from challenging the liability and damages determinations that were made in the underlying action against its insureds (see Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637, 640 ).
We further find that defendant cannot rely upon the outstanding discovery demanded to defeat plaintiff's motion for summary judgment as premature (see CPLR 3212 [f]), as the discovery requested is not essential to justify opposition to the motion. Any facts establishing that defendant had not received notice of the commencement of the underlying action until after the entry of the judgment against its insureds are within defendant's exclusive knowledge and control (see Younger v Spartan Chemical Co., Inc., 252 AD2d 265 ). To the extent that defendant was attempting to seek discovery in order to collaterally attack the validity of the underlying judgment, it could not resort to CPLR 3212 (f) as the basis for a denial of plaintiff's motion for summary judgment.
While plaintiff, in view of the foregoing, is entitled to summary judgment in the principal amount of $25,000, plaintiff is not entitled to recover the interest that accrued from the date of the entry of the underlying judgment (see Insurance Department Regulations [11 NYCRR] § 60-1.1 [b]; Alejandro, 84 AD3d at 1133-1134).
Accordingly, the order is reversed and plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff ...