DiCristi v Liberty Mut. Ins. Co.
Annotate this CaseDecided on August 2, 2005
Supreme Court, Kings County
Richard DiCristi, Plaintiff,
against
Liberty Mutual Insurance Co., Defendant.
16319/04
Francois A. Rivera, J.
Plaintiff moves, pursuant to CPLR §3212, for summary judgment on the issue of liability. Plaintiff further moves pursuant to Insurance Law §3420(a) for an order directing the Clerk to enter judgment in favor of the plaintiff against the defendant in the principal sum sought in the complaint, in the amount of $29,081.24, on the ground that it is a sum certain not in need of a judicial inquest, and to further direct the clerk to award interest on the said judgment. Defendant opposes the plaintiff's motion.
In December of 2002, plaintiff commenced a tort action for personal injuries in Queens County Civil Court under index number 43918/03 against Delroy Stephens. The complaint alleged that on April 8, 2002, plaintiff was driving at or near Flatbush Avenue and Avenue K in Kings County, when he was struck and injured by a vehicle owned and operated by Delroy Stephens bearing license plate number BEP6924. By decision dated September 15, 2003, Judge Augustus C. Agate, after inquest issued a default judgment in the amount of $25,000.00 with interest from April 8, 2002 in favor of the plaintiff. On December 2, 2003, judgment was entered. Defendant, Liberty Mutual, admitted that Delroy Stephens vehicle bearing the aforementioned license plate number was covered by an automobile insurance policy issued by them. By letter dated December 7, 2000, Defendant notified their insured and the plaintiff that they were disclaiming coverage based on an exclusion provision of the insurance contract pertaining to use of the vehicle as a public or livery conveyance. There is no dispute that a police accident report was prepared by a New York City police officer which indicated that the vehicle which struck Richard Dicristi and left the scene was being operated as a dollar van.
Pursuant to Insurance Law §3420(a)(2), a cause of action was brought against the defendant, Liberty Mutual, the insurer. [*2]
Insurance Law §3420 (a)(2) states: (a) No policy or contract insuring against liability for injury to person, except as provided in subsection (g) hereof, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions which are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors:(2) A provision that in case judgment against the insured or his personal representative in an action brought to recover damages for injury sustained or loss or damage occasioned during the life of the policy or contract shall remain unsatisfied 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, then an action may, except during a stay or limited stay of execution against the insured on such judgment, be maintained against the insurer under the terms of the policy or contract for the amount of such judgment not exceeding the amount of the applicable limit of coverage under such policy or contract.
Insurance Law §3420 (d) provides: If under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant.
Pursuant to Insurance Law §3420 (d) an injured claimants have an independent right to seek coverage under a policy of insurance regardless of whether the actual insureds have complied with its coverage provisions (General Acc. Ins. Group v. Cirucci, 46 NY2d 862 [1979]). The court ordered a hearing to determine the timeliness and validity of the defendant's disclaimer. On April 12, 2005, the court conducted said hearing. Defendant had the burden to prove the existence of the disclaimer, the timely notice of its intention to disclaim coverage, and its validity. The defendant produced evidence in the form of testimony from its employees who investigated the accident report and the insurance coverage. However, the defendant did not produce as evidence, the original contract.
Without the insurance contract itself, any recitation of the contract's terms through testimony or other documents in evidence is rank hearsay and contrary to the best evidence rule (see In the Matter of the Application for a Permanent Stay of Arbitration by Allstate Insurance Co v Ganesh, 2005 NY Slip Op. 25269 [Bronx County, 2005]; People v Joseph, 86 NY2d 565 [1995]; Schozer v William Penn Life Ins. Co. Of NY, 84 NY2d 639 [1994]). The absence of Liberty Mutual's insurance policy thus prevents any finding that a disclaimer under that policy is valid as a very threshold matter. As a result, there is no need not address the issue of the timeliness of defendant's disclaimer. . [*3]
Defendant's admission of coverage of the offending vehicle is all that remains. There is no issue fact as to defendants liability pursuant to Insurance law § 3420(a)(2) for the judgement entered against its insured based on the insured's negligent operation of his vehicle.
CPLR § 5003 provides that every money judgment shall bear interest from the date of its entry. Every order directing the payment of money which has been docketed as a judgment shall bear interest from the date of such docketing. CPLR § 5004 provides that interest shall be at the rate of nine per centum per annum, except where otherwise provided by statute.
Plaintiff's motion for summary judgment for the sum stated, $29,081.24 plus interest pursuant to CPLR §§5002 and 5003 from December 2, 2003 is therefore granted.
The foregoing constitutes the decision and order of the court.
___________________________
JSC
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