Richard S. Gershman & Assoc., P.C., Lake Success, NY, for
& Asher LLP, New York, NY (Marshall T. Potashner and
David Shyer of counsel), for respondent.
E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, BETSY
DECISION & ORDER
action pursuant to Insurance Law § 3420(a)(2) to recover
the amount of an unsatisfied judgment against the
defendant's insured, the plaintiffs appeal, as limited by
their brief, from so much of an order of the Supreme Court,
Nassau County (Anzalone, J.), entered June 24, 2016, as, upon
reargument, adhered to the original determination in an order
dated February 1, 2016, denying their unopposed motion for
leave to enter a default judgment against the defendant, and
granted the defendant's cross motion pursuant to CPLR
3012(d) to compel them to accept its late answer.
that the order entered June 24, 2016, is reversed insofar as
appealed from, on the facts and in the exercise of
discretion, with costs, upon reargument, the order dated
February 1, 2016, is vacated and the plaintiffs' motion
for leave to enter a default judgment against the defendant
is granted, and the defendant's cross motion pursuant to
CPLR 3012(d) to compel the plaintiffs to accept its late
answer is denied.
October 20, 2013, the plaintiffs were involved in an
automobile accident with the defendant's insured,
nonparty Jamal Bates, during which they were injured.
Thereafter, the plaintiffs commenced an action against Bates
to recover damages for their personal injuries (hereinafter
the underlying action).
Bates's failure to appear or answer in the underlying
action, the plaintiffs moved for leave to enter a default
judgment against him. The Supreme Court granted the
plaintiffs' motion and set the matter down for an inquest
to determine damages. After the inquest, a judgment was
entered in the underlying action in favor of the plaintiffs,
awarding each of them the principal sum of $50, 000. On
August 27, 2015, the plaintiffs served Bates and the
defendant with a copy of the judgment with notice of entry in
the underlying action.
plaintiffs then commenced this action pursuant to Insurance
Law § 3420(a)(2) to recover the amount of the
unsatisfied judgment in the underlying action from the
defendant as Bates's insurer. After process was served
upon the defendant on October 26, 2015, and the defendant
failed to appear or answer, the plaintiffs moved in December
2015 for leave to enter a default judgment against the
defendant. The defendant did not oppose the motion. In an
order dated February 1, 2016, the Supreme Court denied the
unopposed motion without prejudice, finding that the
plaintiffs failed to comply with CPLR 3215(f) since they
relied on a complaint verified by their attorney.
by notice of motion dated February 9, 2016, the plaintiffs
moved for leave to renew and reargue their prior motion,
asserting, inter alia, that since the action was one to
collect an unsatisfied judgment from an insurer, their
attorney had personal knowledge of the facts constituting the
claim, which he set forth in his affirmation accompanying the
prior motion. While the plaintiffs' motion to renew and
reargue was pending, the defendant attempted to serve the
plaintiffs with its answer, dated March 8, 2016, which the
plaintiffs rejected as untimely. Thereafter, on March 16,
2016, the defendant opposed the plaintiffs' motion and
cross-moved pursuant to CPLR 3012(d) to compel the plaintiffs
to accept its late answer.
Supreme Court granted that branch of the plaintiffs'
motion which was for leave to reargue, and upon reargument,
adhered to its original determination denying the
plaintiffs' motion for leave to enter a default judgment
against the defendant. The court also granted the
defendants' cross motion to compel the plaintiffs to
accept its late answer.
motion for leave to enter a default judgment pursuant to CPLR
3215, a plaintiff is required to submit proof of service of
the summons and complaint, the facts constituting the cause
of action, and the defendant's default in answering or
appearing (see CPLR 3215[f]; Roy v 81 E 98th KH
Gym, LLC, 142 A.D.3d 985, 985; Fried v Jacob
Holding, Inc., 110 A.D.3d 56, 59; Dupps v
Betancourt, 99 A.D.3d 855, 855; Atlantic Cas. Ins.
Co. v RJNJ Servs., Inc., 89 A.D.3d 649, 651). To
demonstrate the facts constituting the cause of action, the
plaintiff need only submit sufficient proof to enable a court
to determine if the cause of action is viable (see
Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 71;
Roy v 81 E 98th KH Gym, LLC, 142 A.D.3d at 985-986;
Fried v Jacob Holding, Inc., 110 A.D.3d at 60). The
court may consider the complaint, affidavits, and
affirmations submitted by the plaintiff (see Interboro
Ins. Co. v Johnson, 123 A.D.3d 667, 668; Litvinskiy
v May Entertainment Group, Inc., 44 A.D.3d 627, 627).
verification is a statement under oath that the pleading is
true to the knowledge of the deponent, except as to matters
alleged on information and belief, and that as to those
matters he [or she] believes it to be true" (CPLR
3020[a]). While a pleading is to be verified by affidavit of
the party, "if all the material allegations of the
pleading are within the personal knowledge of... the
attorney, the verification may be made by such...
attorney" (CPLR 3020[d]).
the plaintiffs met all of the requirements for demonstrating
their entitlement to enter a default judgment against the
defendant. The affidavit of service submitted in support of
the motion constituted prima facie evidence that the
defendant was properly served through the New York State
Department of Financial Services pursuant to Insurance Law
§ 1212 (see U.S. Bank N.A. v Poku, 118 A.D.3d
980, 981; Carver Fed. Sav. Bank v Supplice, 109
A.D.3d 572). Further, since the plaintiffs' attorney had
firsthand knowledge of the facts constituting the
plaintiffs' cause of action pursuant to Insurance Law
§ 3420(a)(2) against the defendant and proof of the
defendant's default in answering the complaint, the
Supreme Court improperly denied the plaintiffs' motion on
the basis that their attorney's affirmation and the
complaint verified by him did not provide a sufficient basis
upon which to grant leave to enter a default judgment against
the defendant (see CPLR 3020[d]; CPLR 105[u];
Martin v Zangrillo, 186 A.D.2d 724, 724; see
also State Farm Mut. Auto. Ins. Co. v Rodriguez, 12
defeat the plaintiffs' facially adequate CPLR 3215 motion
and be relieved of its default in answering the complaint,
the defendant had to show either that it did not default, or
that it had a reasonable excuse for its default and a
potentially meritorious defense to the action (see U.S.
Bank N.A. v Wolnerman,135 A.D.3d 850, 851; U.S.
Bank N.A. v Dorestant,131 A.D.3d 467, 470). In order to
compel the plaintiffs to accept service of its untimely
answer, the defendant also had to provide a reasonable excuse
for the delay in answering and demonstrate a potentially
meritorious defense to the action (see CPLR 3012[d];
TCIF REO GCM, LLC v Walker,139 A.D.3d 704;
Deutsche Bank Natl. Trust Co. v Kuldip, 136 A.D.3d
969, 969; Mannino Dev., Inc. v Linares, 117 A.D.3d
995). "[S]uccessful opposition to a CPLR 3215 motion for
leave to enter a default judgment ...