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Metropolitan Group Property & Cas. Ins. Co. v. Wellington

New York District Court, First District Nassau

October 30, 2013

John WELLINGTON & Marie Pierre-Canel, Defendant(s).

[975 N.Y.S.2d 620] Allen D. Werter, Esq., Huntington, for Plaintiff.

John Wellington and Marie Pierre-Canel, Defendants pro se.


This action by the insurer of a damaged auto involves facts and circumstances which defy easy analysis. A slim set of motion papers seeks a default judgment against defendants. The papers end up presenting complexities not apparent from the face of the moving papers. In the decision that follows, the Court issues rulings on the matter which wade through a series of difficult jurisdictional issues and novel legal questions. Finally addressing the merits of the motion, the Court concludes that plaintiff's proof of claim is deficient, requiring denial of the motion.

Background Facts

According to the moving papers, plaintiff, Metropolitan Group Property & Casualty Insurance Company, insured a motor vehicle that was owned by its subrogors, Marva and Swinston Harrigan. On January 23, 2012, the vehicle was damaged in a collision that took place in Freeport, New York. Following payment of a claim made by its insureds, plaintiff brought suit against the driver and the owner of a second vehicle. An amended complaint alleges " upon information and belief" that the collision " resulted solely from the negligence and carelessness of defendant, Marie Pierre-Canel in the operation and control of said motor vehicle owned by [defendant] John Wellington."

The owner, defendant Wellington, was served with the lawsuit at his dwelling in Brooklyn, New York, through delivery of the summons and complaint to a person of suitable age and discretion. See CPLR 308(2). The driver, defendant Pierre-Canel, was served at her dwelling in Wyandanch, New York, through " nail and mail" service. See CPLR 308(4). Neither defendant served or filed an answer to the complaint within the time allowed by law. See UDCA 402(b).

Plaintiff's Motion

Within one year of defendants' default, plaintiff filed a timely motion for a default judgment against defendants, see CPLR 3215(c), seeking judgment in the principal amount of $12,809.25, plus interest from the date of the accident. The motion was submitted, unopposed, without defendants ever appearing.


As this Court has previously noted, " it is tempting to simply grant [an unopposed default judgment application] and move on to other pressing matters." Utica Mutual Ins. Co. v. Lynton, 31 Misc.3d 804, 806, 918 N.Y.S.2d 332 (Dist. Ct. Nassau Co.2011). " However, the rule of law ... demands more." Id. " The Court's duty is not ministerial." Id. , citing [975 N.Y.S.2d 621] McGee v. Dunn, 75 A.D.3d 624, 906 N.Y.S.2d 74 (2d Dept. 2010). A plaintiff cannot properly obtain a default judgment unless and until it submits the required proof. See CPLR 3215(f).

Upon close examination of plaintiff's moving papers, it appears that plaintiff's application presents a series of complex procedural and substantive issues which require careful analysis. First and foremost, District Courts are courts of limited jurisdiction. Although this Court's subject matter jurisdiction over plaintiff's action " is not open to question," see Philadelphia Indemnity Ins. Co. v. Goggins-Starr, 30 Misc.3d 459, 461, 913 N.Y.S.2d 878 (Dist. Ct. Nassau Co.2010), " the Court's exercise of personal jurisdiction over defendants hinges on its long arm' powers under UDCA 404(a), and general jurisdictional principles." Id. at 462, 913 N.Y.S.2d 878.[1] Pursuant to that section, a District Court " may exercise a personal jurisdiction over any non-resident of the county" only with respect to causes of action which arose from acts within the county, " in person or through an agent," involving the transaction of business in the county; the commission of a tortious act within the county; or the ownership, use or possession of real property situated within the county. UDCA 404(a).

In the instant case, the complaint, on its face, appears to allege the commission of such a tortious act by defendant Pierre-Canel in Freeport, New York, which is within the County of Nassau ( see plaintiff's complaint, ΒΆΒΆ 4-7). However, the complaint does not allege that defendant Wellington, personally, committed such a tortious act in Nassau County. Nor does it allege that Pierre-Canel was Wellington's " agent" when the accident took place. Rather, the sole ground for suing Wellington is his status as the owner the vehicle that Pierre-Canel was driving. See VTL 388(1) (" Every owner of a vehicle used and operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner" ).

In circumstances like these, does the plaintiff have to plead and/or prove the legal basis for asserting long-arm personal jurisdiction against the defendant Wellington in order to obtain a default judgment against him? Surprisingly, current caselaw provides no clear answer to the question.

More than 40 years ago, when Judge Niehoff decided Coffman v. National Union Fire Ins. Co., 60 Misc.2d 81, 302 N.Y.S.2d 480 (Dist. Ct. Nassau Co.1969), the caselaw at that time set forth a bright line rule: " Under present law one seeking to invoke the in personam jurisdiction of this court with respect to a nonresident must expressly allege in the complaint the facts bringing the ...

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