Frassetti v Payments Inc.
Annotate this CaseDecided on January 21, 2005
Civil Court of the City of New York, Richmond County
PARIS FRASSETTI, Plaintiff
against
PAYMENTS INC. and STATE FARM MUTUAL AUTO INSURANCE CO., Defendants
36113 RCV 2003
Plaintiff:
Pro Se
Attorney for Defendant
Jonathan H. Kaufman, Esq.
State Farm Mutual Auto Insurance Co.:
Serpe, Andree & Kaufman
149 Main St.
P.O. Box 165
Huntington, NY 11743
(631) 421-4488
Defendant Payments Inc.:
No appearance
Judith R. McMahon, J.
The Decision and Order of the Court is as follows:
Plaintiff brought suit against the Defendants, Payments Inc. and State Farm Mutual Auto Insurance Company, seeking to recover automobile insurance policy premiums for the period of June, July and August 2003 in addition to lost wages allegedly resulting from the 102 day suspension of his driver's license.
The instant action was commenced by service of a Summons with Endorsed Complaint upon Payments Inc. on or about January 9, 2004, and upon State Farm Mutual Auto Insurance Company on or about February 19, 2004. Issue was joined by State Farm Mutual Auto Insurance Company by the filing of a Notice of Appearance and Verified Answer on or about March 18, 2004. Payments Inc., Plaintiff's finance company, did not interpose an Answer. A trial convened on October 26, 2004 wherein Mr. Frassetti appeared pro se and State Farm Mutual Auto Insurance Company was represented by counsel. Payments Inc. did not appear at trial. The trial was adjourned to allow Plaintiff time within which to produce proof of wages. The trial was ultimately held on January 18, 2005.
At trial, Mr. Frassetti testified that in November 2002 he had procured an automobile insurance policy from State Farm Mutual Auto Insurance Company through his insurance broker, Network Agency. He averred that all monthly premiums, in the amount of $191.52, were paid through August 2003, including a double payment which was made in July 2003. (Pl. Exh. 1-D). Mr. Frassetti claims that he was never notified by State [*2]Farm Mutual Auto Insurance Company that his policy was canceled, effective April 14, 2003, and was unaware that he was not insured until he received a notice from the New York State Department of Motor Vehicles, dated June 28, 2003, indicating that his driver's license had been suspended due to lack of insurance coverage. (Pl. Exh. 1-C). He then received a demand for the return of his license plates from the Department of Motor Vehicles dated July 27, 2003, and it was indicated that his license was suspended for 102 days effective July 12, 2003. (Pl. Exh. 1-F). He further testified that his license was not reinstated until November 18, 2003.
Mr. Frassetti also denies receiving any notification of the numerous premium increases assessed against his policy, but claims that Payment Inc. was aware of these increases , but refused to inform him of them until they received payment. Plaintiff did not elaborate on the basis of this knowledge.
Plaintiff testified that prior to the suspension of his license, he had been employed by Saldona Corp. for approximately three and one-half years as a container truck driver. (Pl. Exh. 1-E). He claims that due to the suspension of his driver's license he was unable to continue working and therefore suffered lost wages. To this end, Plaintiff produced Donna Belazaqua as a witness.
Ms. Belazaqua testified that she is the owner of Saldona Corp. Her testimony was equivocal in that she did not bring any records concerning Plaintiff's employment and was vague concerning the years he worked at her company. Further, she was unsure if Plaintiff worked five or six days a week during his tenure at her place of employment.
Defendant State Farm Mutual Auto Insurance Company produced Edward C. Jennings as a witness. Mr. Jennings testified that he is a senior special assigned risk team leader and that he supervises the assigned risk team from the time an insurance application is made through the time the policy is cancelled. Mr. Jennings stated that Mr. Frassetti's application was assigned to his team and produced the Plaintiff's file at trial.
Mr. Jennings testified that Plaintiff's original application was dated November 12, 2002, and indicated Mr. Frassetti' address as 104 Gary Place, Staten Island, New York 10314. (Deft. Exh. A). A photocopy of Mr. Frassetti's drivers license submitted with the application, however, stated his address as being 1378 Dahill Road, Brooklyn, New York. (Deft. Exh. L). The application was assigned to State Farm Mutual Auto Insurance Company on November 26, 2002, but the effective date of the insurance coverage was November 13, 2002. An initial Notice to the Insured, with payment notice, was mailed by Defendant to Plaintiff at the Gary Place address on December 11, 2002. (Deft. Exh. C). On December 31, 2002, Mr. Jennings testified that a second bill, reflecting an increase in Plaintiff's premium due to an accident in which he was involved in June 2002, but which [*3]was omitted from his application, was forwarded to 104 Gary Place, Staten Island, New York. (Deft. Exh. D). On two other occasions, Mr. Jennings testified that bills were forwarded to the Gary Place address requesting payment of additional premiums and surcharges for accidents that Mr. Frassetti had failed to include in his initial application. (Deft. Exh. F & G). Inasmuch as Defendant became aware of a discrepancy between the address Plaintiff had listed on his application and his address as indicated on his driver's license, a surcharge was assessed against Plaintiff and a bill in this regard was forwarded to Plaintiff at 104 Gary Place, Staten Island, New York. (Deft. Exh. I). In addition, Mr. Jennings testified that these bills and other notices were also forwarded to Payments Inc. because insurance companies are required to notify third-parties when such third-party is a finance company.
Mr. Jennings stated that the only payments received with regard to Plaintiff's insurance policy was a payment of $501.75, made by Payments Inc. at the time of Mr. Frassetti's initial application, and a payment of $1,505.25, also made by Payments Inc., on December 30, 2002. According to Mr. Jennings, the aggregate payment of $2007.00 covered the Plaintiff's outstanding premium balance through March 3, 2003. Mr. Jennings testified that due to Plaintiff's non-payment of the insurance premium, a cancellation notice, with at least twelve
point type, was forwarded to Mr. Frassetti at 104 Gary Place, Staten Island, New York on March 27, 2003. (Deft. Exh. J). Mr. Jennings produced a certificate of mailing with proper postal endorsements as proof. (Deft. Exh. K). The cancellation notice advised Plaintiff that his insurance policy would be cancelled effective April 14, 2003 at 12:01 a.m. if he did not pay the outstanding balance of $4,612.00. On May 12, 2003, Defendant electronically notified the New York State Department of Motor Vehicles of the cancellation of Plaintiff's insurance policy. (Deft. Exh. M).
Section 313 of the Vehicle and Traffic Law sets forth the requirements for the termination of automobile insurance policies as follows:
1. (a) No contract of insurance for which a certificate of insurance has
been filed with the commissioner shall be terminated by cancellation
by the insurer until at least twenty days after mailing to the named
insured at the address shown on the policy a notice of termination by
regular mail, with certificate of mailing, properly endorsed by the
postal service to be obtained, except where the cancellation is for non-
payment of premium in which case fifteen days notice of cancellation
shall be sufficient...Time of the effective date and hour of termination
stated in the notice shall become the end of the policy period. Every
notice or acknowledgment of termination for any cause whatsoever
sent to the insured shall include in type of which the face shall not be
smaller than twelve point a statement that proof of financial security
is required to be maintained continuously throughout the registration [*4]
period and a notice prescribed by the commissioner indicating the
punitive effects of failure to maintain continuous proof of financial
security and actions which may be taken by the insured to avoid such
punitive effects.
(b) Every insurer shall retain a copy of the notice of termination mailed
pursuant to this chapter and shall retain the certificate of mailing
obtained from the postal service upon the mailing of the original said
notice. A copy of a notice of termination and the certificate of mailing,
when kept in the ordinary course of business, shall constitute
conclusive proof of compliance with the mailing requirements of
this chapter.
Vehicle and Traffic Law §313 [emphasis added]
Clearly, the Defendant followed the mandates of Vehicle and Traffic Law §313(1(a)(b) with regard to the cancellation of Plaintiff's insurance policy. The testimony adduced at trial, and evidence proffered in connection therewith, indicate that the subject notice of cancellation was forwarded to the Plaintiff at the address listed on the insurance policy, to wit: 104 Gary Place, Staten Island, New York 10314, as per the statutory requirement. The notice contained all required information, such as the effective date and time of cancellation and a statement, in at least twelve point type, that financial security must be maintained throughout the period of registration and the ramifications if financial security is not maintained as required. (Deft. Exh. J). Furthermore, a certificate of mailing with appropriate postal endorsement was offered trial and indicated that the notice of cancellation was mailed to Plaintiff at the Gary Place address on March 27, 2003, such date being more than fifteen days prior to the cancellation date of April 14, 2003, as required by law. (Deft. Exh. K). Such certificate of mailing, having been kept in the ordinary course of business as part of Plaintiff's file, as testified to by Defendant's witness, constitutes proof of mailing within the parameters of the statute. Moreover, the certificate of mailing "gives rise to the presumption that mailing was received by the addressee."Residential Holding Corp. V. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); Hughson v. National Grange Mutual Insurance Company, 113 AD2d 1031, 494 NYS2d 682 (4th Dept. 1985), appeal denied, 67 NY2d 647, 499 NYS2d 1032 (Jan. 28, 1986). If a plaintiff fails to submit evidence in admissible form sufficient to rebut the presumption, the notice of cancellation will be deemed to have been received. Residential Holding Corp., supra , 286 AD2d at 680, 729 NYS2d at 778.
In the matter at bar, the Plaintiff not only failed to rebut the presumption of delivery of the notice of cancellation, but consistently and persistently insisted that his address at the time he procured the subject insurance policy was 104 Gary Place, Staten Island, New York 10314, and that it was still his actual residence at the time that the policy was cancelled and his license suspended. More specifically, Plaintiff sought to explain [*5]discrepancies in his addresses by claiming that since he worked in Brooklyn, both as an employee of Saldona Corp. and as a funeral director for an un-named funeral home, he often stayed at his parent's home, located at 1378 Dahill Road in Brooklyn. Notwithstanding, Mr. Frassetti adamantly stated that he retrieved his mail every other day from the Gary Place address. Moreover, throughout the pendency of the trial , Mr. Frassetti continued to maintain that his actual address was 104 Gary Place, Staten Island, New York, despite the fact that his own documents indicate that he had at least three other addresses during the applicable time period. Mr. Frassetti's 2002 Federal and New York State Tax Returns state that his home address was 3813 12th Avenue, Brooklyn, New York, while his 2003 Federal and New York State Tax Returns indicate his home address was 122 Fingerboard Road, Staten Island, New York. (Pl. Exh. 1-E). The corresponding W-2 Forms attached to each return, however, state that his address is 1378 Dahill Road, Brooklyn, New York. (Pl. Exh. 1-E).
Inasmuch as Mr. Frassetti did not rebut the presumption of delivery of the notice of cancellation and since Defendant complied §313(1)(a) of the Vehicle and Traffic Law by mailing the notice of cancellation to the address indicated on Plaintiff's application, the Court finds that Plaintiff did not satisfy the burden of proof incumbent upon him to prove that Defendant was responsible for the suspension of Plaintiff's license and resultant lost wages.
Moreover, the portion of Plaintiff's claim demanding return of premium payments for the months of June, July and August is also without merit. Despite having ample time to do so, Mr. Frassetti did not produce anyone from Network Agency Inc, his insurance broker, to corroborate his claim that such payments were made in cash to the broker.
Accordingly, judgment is hereby entered in favor of Defendant State Farm Mutual Auto Insurance Company.
Plaintiff also failed to establish that this Court has personal jurisdiction over the defaulting Defendant, Payment Inc. The only proof offered by Plaintiff in this regard was his testimony that he had telephonic conversations with its representatives at its offices in Woodland Hills, California.
Personal jurisdiction may be obtained over a non-domiciliary in limited circumstances. Pursuant to CPLR § 301, a New York Court may exercise jurisdiction over a foreign corporation if the corporation is "engaged in such continuous and systematic course of doing business here as to warrant a finding of its 'presence' in this jurisdiction." Laufer v. Ostrow, 55 NY2d 305, 434 NE2d 692, 449 NYS2d 456 (1982), citing McGowan v. Smith, 52 NYS2d268, 419 NE2d 321, 437, NYS2d 643 (1981), quoting Simonson v. [*6]International Bank, 14 NY2d 281, 200 NE2d 427, 251 NYS2d 433 (1964). It has long been held that the test to determine whether a foreign corporation is "doing business" in New York is a "pragmatic one" which requires a case-by-case analysis to ensure that the "presence in New York is not [occasional] or [casual], but with a fair measure of permanence and continuity." Landoil Resources Corporation v. Alexander & Alexander, 77 NY2d 28, 565 NE2d 488, 563 NYS2d 739 (1990); Bryant v. Finnish Airlines, 15 NY2d 426, 208 NE2d 439, 260 NYS2d 625 (1965); Tauza v. Susquehanna Coal Co., 220 NY 259, 115 NE 915 (1917). "Mere solicitation" of business in New York does not rise to the level necessary to find that a foreign corporation is "doing business" or has "a presence" in New York. Laufer v. Ostrow, supra , 55 NY2d at 310. Although not a exhaustive list in determining presence, one must find that the foreign corporation had offices, staff present, bank accounts, and officers in New York in order to deem that such corporation is "present" in this State. Id., see also, Tripmasters Inc. v. Hyatt International Corporation, 696 F. Supp. 295 (SDNY 1988).
Pursuant to CPLR §302(a)(1), New York Courts are able to obtain jurisdiction over a non-domiciliary which does not have "presence" in New York if it "transacts any business within the state" and the "cause of action arises out of" such transactions. In order to prevail on this "long-arm" theory of jurisdiction, the Plaintiff must show the entity has minimum contacts with the state such that a law suit brought in a New York court would not offend "traditional notions of fair play and substantial justice" International Shoe Co. v. Washington, 326 US 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Though less stringent than the "doing business" and "presence" tests derived from CPLR §301, the burden of proof stills rests with the Plaintiff to show that the non-domiciliary engage in "purposeful activities" within this State. McGowan v. Smith, supra , 52 NY2d at 271. In the absence of other contact, telephonic conversations between a party in New York and one from another locale have long been held to be insufficient to subject the non-domiciliary to the jurisdiction of a New York Court. Tripmasters, Inc. v. Hyatt International, supra , 696 F. Supp. at 938, see also Beacon Enterprises, Inc. v. Menzies, 715 F.2d 727.
Since Plaintiff did not proffer any evidence sufficient to find that Payments Inc. either had a "presence" in New York in order to support a finding of jurisdiction under CPLR §301, or had "minimum contacts" with this state within the purview of CPLR §302(a)(1), the Court finds that Plaintiff failed to prove that this Court has jurisdiction of Payments Inc and therefore cannot take a default judgment against Payments Inc.
Accordingly, judgment is entered in favor of Defendant Payments Inc.
In conclusion, judgment shall be entered in favor of each Defendant, State Farm Mutual Auto Insurance Company and Payments Inc.
This is the Decision and Order of the Court.
Dated: January 21, 2005
Staten Island, NY Judith R. McMahon Judge, Civil Court
APPEARANCES
Plaintiff:
Pro Se
Attorney for Defendant
Jonathan H. Kaufman, Esq.
State Farm Mutual Auto Insurance Co.:
Serpe, Andree & Kaufman
149 Main St.
P.O. Box 165
Huntington, NY 11743
(631) 421-4488
Defendant Payments Inc.:
No appearance
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