Progressive Cas. Ins. Co. v Gomez

[*1] Progressive Cas. Ins. Co. v Gomez 2009 NY Slip Op 51956(U) [25 Misc 3d 1202(A)] Decided on September 18, 2009 Supreme Court, Westchester County Giacomo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2009
Supreme Court, Westchester County

Progressive Casualty Insurance Company as Subrogee of 4 SATCH INC., Plaintiff,

against

Felix M. Gomez and ROSE FERNANDEZ, Defendants.



8804/2008



Barth Sullivan Behr

600 Convention Tower

43 Court Street

Buffalo, New York 14202

Felix M. Gomez

Rosa Fernandez

306 E. 171 Street, Apt. 2L

Bronx, New York 10457

William J. Giacomo, J.

Plaintiff commenced this subrogation action to recover damages in the total amount of $46,254.27 (property damage of $800, additional expenses of $14,954.27 and uninsured motorist benefits of $30,000), as a result of a motor vehicle accident that occurred on April 2, 2006. As a result of the accident, plaintiff's insured made claims to plaintiff. Based on the insurance policy, plaintiff paid its insured's claim. Plaintiff now seeks to recover its damages from defendants Felix M. Gomez and Rose Fernandez.

The summons and complaint were filed in this action on April 21, 2008. It appears from the affidavit of service that the defendants were served on May 14, 2008[FN1]. Now before the Court is plaintiff's motion for a default judgement which, while not necessary, was brought purportedly on notice to the defendants[FN2]. The Defendants have not submitted opposition to the motion.

To the extent relevant to this motion, CPLR 3215(c) provides that:

"If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." (Emphasis added).

Pursuant to CPLR 3215(c), a Motion Court "providently exercise[s] its discretion in dismissing the complaint" if "[t]he plaintiff fail[s] to seek entry of a default judgment within one year following the defendant's default in answering the complaint" and "the plaintiff fail[s] to make a showing of sufficient cause why the complaint should not be [*2]dismissed". Ewart v. Maimonidies Medical Center, 239 AD2d 543, 544, 657 NYS2d 210 (2nd Dept., 1997); see also, Mattera v. Capric, 54 AD3d 827, 864 NYS2d 98(2nd Dept., 2008).

Here Rose Fernandez was served personally and Felix Gomez was served by leave and mail service, and they were in default by no later than June 4, 2008 and June 14, 2008, respectively. The instant motion was filed on July 21, 2009. Notably, plaintiff fails to offer any excuse for its failure to take a default judgment by June 4, 2009 or June 14, 2009, within one year of the defendants' default. Thus, this motion is untimely and must be denied. CPLR 3215; see also, Jones v. Corley, 35 AD3d 381, 825 NYS2d 534(2nd Dept., 2006), leave to appeal dismissed in part, denied in part, 9 NY3d 886, 874 NE2d 729, 842 NYS2d 765 (2007); Iskhakova v. Klages, 37 AD3d 542, 829 NYS2d 678 (2nd Dept., 2007)[It was inappropriate to enter default judgment against defendants more than one year after their failure to answer absent showing by plaintiff of reasonable excuse for failing to act in timely manner; action dismissed]; Gleason v. Gottlieb, 35 AD3d 355, 826 NYS2d 633 (2nd Dept., 2006)[Where plaintiff failed to timely move within statutory one-year period, default judgment was not warranted].

The motion must also be denied for another reason. The submission of a motion for default does not impose upon the Court a ministerial duty to grant the relief requested. Simply, lack of opposition does not deprive the Court of the duty to exercise its inherent discretion to assure that justice is done because the Court's responsibility is not different on a default application than it is on a fully litigated motion. Here, that the defendants appear to have been properly served and defaulted does not obviate the plaintiff's burden to demonstrate that a viable cause of action exists. Indeed, plaintiff is "required to support their motion for a default judgment ( see CPLR 3215) with at least 'enough facts to enable [the] court to determine that a viable cause of action exists' ". Resnick v. Lebovitz, 28 AD3d 533, 534, 813 NYS2d 480, 482 (2nd Dept., 2006), quoting, Woodson v. Mendon Leasing Corp., 100 NY2d 62, 71, 760 NYS2d 727, 790 NE2d 1156 (2003), citing 7 Weinstein-Korn-Miller, NY Civ. Prac. ¶ 3215.24, at 32-326.

In the instant matter, the motion for default is not properly supported. A subrogation action "allows an insurer to stand in the shoes of its insured and seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse." Kaf-Kaf, Inc. v. Rodless Decorations, Inc., 90 NY2d 654, 660, 665 NYS2d 47, 687 NE2d 1330(1997). See also, Antonitti v. City of Glen Cove, 266 AD2d 487, 489, 698 NYS2d 722, 724 (2nd Dept., 1999)["an insurer, on paying a loss, is subrogated in a corresponding amount to the insured's right of action against any other person responsible for the loss."] Thus, to prevail in a subrogation action, the plaintiff bears the burden to prove the defendants were the negligent party. See, Beaton v. Transit Facility Corp., 14 AD3d 637, 637, 789 NYS2d 314, 315 (2nd Dept., 2005)[Neither attorney verified complaint, nor affidavit of merit that failed to set forth the facts constituting the alleged negligence, were sufficient to support a default judgment]; Cohen v. Schupler, 51 AD3d 706, 707, 856 NYS2d 870 (2nd Dept., 2008)["Neither the conclusory allegations of the complaint nor the affidavit of merit set forth the facts constituting the alleged negligence sufficiently to support a default judgment."]

Here, the attorney's affirmation submitted with the motion papers establishes the [*3]default and the adjuster's affidavit confirms the amounts paid by Progressive Casualty Insurance Company. However, there is no affidavit of facts establishing the defendants negligence, nor is a complaint verified by a party with knowledge submitted with the motion papers. On a motion for a default judgment, the movant must submit "proof by affidavit made by the party of the facts constituting the claim" (CPLR §3215[f]). The affidavit of merit submitted by the plaintiff was executed by one of plaintiff's adjusters, who does not have personal knowledge of the facts related to the underlying accident. Consequently, a default judgment may not be entered. Blam v. Netcher, 17 AD3d 495, 496, 793 NYS2d 464 (2d Dept., 2005) [Default judgment motion should have been denied because, "[i]n support of her motion ..., the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts"].

Accordingly the motion is DENIED and this action is DISMISSED.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

September 18, 2009

Hon. William J. Giacomo, J.S.C. Footnotes

Footnote 1:There is no indication as to when these affidavits of service were filed with the Westchester County Clerk.

Footnote 2:The Court has not received an affidavit of service for the motion.