Wolf v Metropolitan Prop. & Cas. Ins. Co.
2012 NY Slip Op 31037(U)
April 16, 2012
Sup Ct, NY County
Docket Number: 100016/10
Judge: Louis B. York
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SUPREME COURT OF
THE STATE OF NEW YORK
- NEW YORK COUNTY
Index Number: 10001612010
SEQUENCE NUMBER : 002
MOTION SEQ. NO.
MOTION GAL. NO.
The following papers, numbered 1 to
were read on this motion tolfor
Notice of Motion/ Order to Show Cause
- Affidavits - Exhibits ...
Answering Affldavits - Exhibits
Upon the foregoing papera, it is ordered that this motlon
APR 19 2012
COUNTY CLERKS OFFICE
Check if appropriate:
9 DO NOT POST
0 SUBMIT ORDER/JUDG.
0 SETTLE ORDER /JUDG.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 2
Index No. 100016/10
-againstMETROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY,
LOUIS B. Y O N , J.:
APR i o 2012
C o U N ~ c L E R K ’ 0 FICE
According to the Complaint in this action, in January 2008 plaintiff Eleanor Wolf a an
insurance policy with defendant Metropolitan Property and Casualty Insurance Company which
required it to pay “basic coverage for dwelling loss.” Amended Verified Complt 7 5 . The
Complaint further alleges that the limit to the coverage was “about $448,400.00.” Id.7 7.
Between January 8 and 10,2008, a hot water pipe burst in her home, causing structural and other
damage throughout her home. Although a adjuster from defendant inspected the premises on
January 14, he informed plaintiffs then-husband that due to the extent of the damage a different
adjuster had to visit the property and perform the appraisal.
The large-claims adjuster scheduled a visit to the property on January 21 and 22,2008.
According to plaintiff she asked that defendant allow her to prepare access parts for the
adjustment; she does not explain what this means, but states that defendant unreasonably denied
her repeated requests. Finally, following his visit to the premises on January 21, the adjuster
allowed plaintiff to prepare the access ports. Apparently the adjuster did not return for a second
day of inspection although plaintiff alleges that she called daily between January 22 and 29 for
this purpose. Plaintiff deems defendant’s failure to return unreasonable and claims it resulted in
a superficial inspection of the property damage. She alleges that the resulting estimate of
damage by the adjuster included only part of the damage.’
On February 4,2008, defendant issued a check to plaintiff for $59,498.63, an amount
plaintiff states covered approximately 25% of the damage. Plaintiff states that she retained the
check but as partial payment only, preserving her objection by “voluntarily submitting sworn
Proof of Loss, with annexed two contractor’s estimates and the structural engineering report as
proof of Defendant’s liability for full payment . . . .” d
She states that when she did not
receive a response she further expressed her disagreement to defendant. The subsequent
sequence of events is not clear, nor are all of plaintiffs allegations. However, it appears that the
Complaint alleges that defendant advised plaintiff to proceed with the work and submit bills to
defendant following its completion, suggesting that it would reimburse her fully at the
appropriate time. She alleges a great deal of additional wrongful conduct by defendant, and
asserts that she contacted defendant repeatedly by letter, telephone, and - following the rejection
of her supplemental claim - by seven notarized letters, but that, defendant always rejected or
failed to respond to her attempts to communicate. She states that after the restoration was
complete, she submitted a “package of supporting documents and fmal bills” supporting her
demand for an additional sum of $196,479.92 from defendant, According to plaintiff, defendant
ignored her requests, and that defendant finally and perfunctorily rejected her claim by
contending that she, rather than the adjuster, canceled the January 22,2008 inspection and
The Complaint also states the report was backdated to suggest the inspection was
January 18,2008 instead of January 21,2008 to give the impression that there was a more brief
delay, but this does not appear to be relevant to her claims.
stating that even after this date she did not allow defendant’s experts access to her property to
inspect the damage. She additionally alleges other misconduct and misrepresentations by
defendant related to the denial of the supplemental claim. Based on the above, plaintiff seeks
$196,479.92, which she contends is the unpaid portion of her claim, along with interest from
Plaintiff retained counsel to represent her in the case; and her original counsel stipulated
on several occasions to extend plaintiff’s time to serve and file the complaint - first, until July 1,
2010; second, until August 1,2010; and third, until October 3 1,2010. Between the second and
third extensions, plaintiff’s counsel withdrew as counsel. Plaintiff did not oppose the motion but
requested additional time to obtain new counsel and prepare her pleadings. Based on the motion
and resulting order, defendant’s counsel entered into a stipulation with plaintiff which allowed
her until November 12,2010 to serve and file the complaint. Plaintiff did not obtain an attorney
and instead served her November 11 Verified Complaint, which she prepared pro se, on
November 12,20 10.
Plaintiff served the Verified Complaint without a summons on November 12,20 10.
Defendant had 20 days from the service of the Verified Complaint to serve its Verified Answer.
Defendant served the Answer by mail on December 17,2010; plaintiff
states she received it on December 23,2010. Plaintiff rejected the Verified Answer in her
document entitled “”COMBINED NOTICE: NOTICE OF REJECTION OF VERIFLED
ANSWER AND ATTORNEY’S AFFIRMATION . . . AND NOTICE OF DEFAULT,” alleging
that it was verified, improperly, by counsel rather than an offcer of defendant, and that
defendant served it 10 days late. This document is dated December 23,2010 and allegedly w s
served by mail on that date. Defendant claims no knowledge of the rejection.
Despite the rejection of the Answer, plaintiff proceeded to serve discovery demands on
defendant; and, on January 11,20 11, served an Amended Verified Complaint, which was dated
January 7,201 1. As defendant acknowledges, it accepted the Amended Verified Complaint.
According to defendant, this was due to its belief that plaintiff had accepted its Answer.
However, as plaintiff notes, defendant did not respond to this amended pleading.
Now, based on her rejection of the Verified Answer, on defendant’s failure to serve an
Amended Verified Answer, and for the reasons that she set forth in the rejection, plaintiff moves
to strike the Answer and obtain an order granting her summary judgment, including judgment in
full for the amount she seeks in the Complaint. Defendant opposes the motion and cross-moves
to compel plaintiff to accept its Amended Verified Answer.
The history of this litigation is convoluted, as are the arguments in the motion and crossmotion. The Court shall attempt to proceed logically and clearly and will address a11 those
arguments the parties appear to have raised.
If plaintiff merely had served the Verified Complaint and rejected the Verified Answer
and if defendant had supported its cross-motion adequately, the Court would have been inclined
to deny the motion for a default judgment and grant the cross-motion. There is a strong policy in
New York favoring the resolution of cases on their merits. Bermdo v. Guillet, 86 A.D.3d 459,
459,925 N.Y.S.2d 521, 522 (lstDept. 201 1). Moreover, as defendant points out, when a
corporation is not located in the county in which an attorney practices, it is acceptable for
counsel to verify the answer on the client’s behalf. CPLR 5 3020(d)(3). Also, defendant notes,
plaintiff has not asserted that she suffered any prejudice due to its brief delay in serving its
Vesizon New York. Xnc. v. Cqse Const. Co.. hc,, 63 A.D.3d 521, 880 N.Y.S.2d
476 (l’*Dept. 2009). As plaintiff herself points out, on numerous occasions defendant stipulated
to extend plaintiff’s time to serve her Complaint. The Court strongly encourages this sort of
cooperation between litigants, and would have encouraged plaintiff to behave with equal civility
here, were defendant to seek the courtesy it extended to her. Finally, as defendant notes in its
opposition! cross-motion, although she rejected the Answer plaintiff proceeded with the
litigation, even going so far as to serve discovery demands, and arguably through her conduct
waived her initial objection.
The Court does not decide the motion as framed, however, because - as defendant points
out - plaintiff amended her Complaint on January 7,20 1 1. Plaintiff served the Amended
Verified Complaint by mail on January 10,2011 and again on January 3 1,20 11. Defendant also
concedes that it accepted the amended pleading, noting that it would have been timely only if
defendant’s Verified Answer had been accepted. Thus, it contends, by the service of the
amended pleading and its acceptance, the parties implicitly also treated the Answer as proper.
To the Court, however, the critical point is this: Because plaintiff served an Amended Verified
Complaint, the timeliness and other issues concerning defendant’s original Verified Answer are
moot. Instead, the parties and the Court must focus on the Amended Verified Answer.
This unfortunately brings the Court to a new problem. It is evident that prior to its
receipt of plaintiff‘s motion, which plaintiff served by mail on November 21, defendant had not
answered the Amended Verified Complaint. Contrary to plaintiffs suggestion, defendant does
not hide this fact - instead, in its cross-motion to compel plaintiff to accept its amended
pleading, it acknowledges that it served the Amended Verified Answer on November 28,201 1.
Under CPLR 4 3025 (d), defendant had 20 days - or until around January 30,201 1 - to serve its
Amended Verified Answer. Thus, its Answer is nearly 10 months late. In her reply and
opposition to the cross-motion plaintiff points out the exbeme delay and lack of explanation for
the late Answer, which the Court reads as pro se plaintiffs rejection of the Amended Verified
Answer. Moreover, in her reply, she annexes her document, “PLAINTIFF’S NOTICE OF
REJECTION OF DEFECTIVELY VERIFIED AMENDED VERIFIED ANSWER SERVED BY
DEFENDANT I RESPONSE TO NOTICE AND AFFIDAVIT IN SUPPORT FOR DEFAULT
JUDGMENT.” Thus, defendant is in default unless the Court grants the cross-motion and
compels plaintiff to accept the new, Verified Amended Answer.
After careful consideration, the Court grants the motion for default judgment in part and
denies the cross-motion in its entirety. Where a motion for default judgment and/or a crossmotion to compel acceptance of an untimely answer is before a court, the court must determine
whether the defendant has provided a reasonable excuse for the untimeliness. Terrones v.
m, A.D.2d 254,255,743 N.Y.S.2d 860, 861 (1” Dept. 2002). Moreover, in this
Department, where, as here, there is no default judgment or order against the defendant, the
defendant need not provide an affidavit of merit to oppose the motion fox default or support its
cross-motion to compel. See Cirillo v. Maw’s Inc ., 61 A.D.3d 538,540, 877 N.Y.S.2d 281,282
Dept. 2009). The trial court has great discretion in determining whether a defendant has
provided a reasonable excuse and meritorious defense.
Though, as defendant notes in its initial papers, plaintiff asserts no prejudice, see Jones v.
414 Equities. LLC, 57 A.D.3d 65, 866 N.Y.S.2d 165 (lBtDept.
2008), the Court does not reach
this issue because defendant has not presented a reasonable excuse for the delay. In fact, it has
presented no excuse or explanation for the delay at all or even mentioned the extreme lateness of
this application. Indeed, it is not clear that it would have answered at all but for plaintiffs
current motion for default judgment. Under these circumstances, it would be improvident for
this Court to allow defendant to serve its answer.
H o l l o w v. City ofNew York, 52
A.D.3d 568, 569, 861 N.Y.S.2d 356, 357 (2"d
Based on the above, therefore, the Court denies the cross-motion to compel and grants
plaintiffs motion for a default judgment to the extent of awarding judgment on the issue of
liability and scheduling a hearing before a referee on the issue of damages. Although, as stated,
plaintiff has shown merit to her claim and defendant, in default, cannot oppose her argument that
it is liable, plaintiff has shown insufficient evidence to support an award of $196,479.92.
Instead, she provides her verified complaint, in which she swears that this amount is outstanding;
and, she annexes a list of those documents she allegedly provided, in binder form, to defendant
on March 25,201 1. Both the Complaint and the list of documents make reference to
contractors' estimates and bill summaries. However, there is no firsthand evidence - that is, the
Court does not have before it the bills for the work performed or the estimates, or any other
documents which might be necessary for it to evaluate plaintiffs contention that $196,479.92 is
due to her in addition to the $59,498.63 defendant already provided to her. Moreover, she has
not submitted a copy of the insurance contract and, as a result, the Court cannot determine
whether the liability limit was, in fact, $448,400.00 and/or whether there were any deductibles or
other offsets which should be applied.
For all these reasons, there is insufficient evidence to establish the precise amount of
damages due to plaintiff. Therefore, a hearing is proper even though defendant is in default and
the court is granting plaintiff judgment on default on the issue of liability. &g Fuchs v. Midali
America Corn, 260 A.D.2d 318,318,689 N.Y.S.2d 80,81 (1"Dept. 1999). The Court finds that
this is by far the more prudent course of action, as well, because of the high mount of damages
plaintiff seeks to recover.
Thus, for the reasons above, it is
ORDERED that the cross-motion is denied; and it is further
ORDERED that the motion is granted and plaintiff is awarded defaulted judgment on the
issue of liability; and it is further
ORDERED that this matter is referred to the Referee’s Clerk on the issue of liability, and
the Clerk is directed upon filing of a copy of this Order to place this action on the appropriate
referee’s calendar to hear and decide the amount due on the Complaint, including interest and
costs, and to enter a Judgment thereon,
APR 19 2072
LOUIS B. YORK, J.S.C.
COUNTY CLERKS OFFICE