Country-Wide Ins. Co. v Garvey

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Country-Wide Ins. Co. v Garvey 2017 NY Slip Op 31614(U) August 1, 2017 Supreme Court, New York County Docket Number: 160907/2014 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/02/2017 12:04 PM 1] NYSCEF DOC. NO. 59 INDEX NO. 160907/2014 RECEIVED NYSCEF: 08/02/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART __2 __ HON. KATHRYN E. FREED, J.S.C. Justice -----------------------------------------------------------------------------X COUNTRY-WIDE INSURANCE COMPANY, INDEX NO. 160907/2014 Plaintiff, MOTION DATE MOTION SEQ. NO. - v -· 003 AMANDA GARVEY, Defendant. DECISION ORDER AND JUDGMENT · --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58 were read on this application to/for Default Judgment Upon the foregoing documents, it is ordered that the motion is granted. In this declaratory judgment action, plaintiff Country-Wide Insurance Company moves, pursuant to CPLR 3215, for a default judgment against defendant Amanda Garvey. After a review of plaintiffs motion, which is unopposed, and after a review of the relevant statutes and case law, the motion is granted. FACTUAL AND PROCEDURAL BACKGROUND: This action arises from an alleged automobile accident on April 10, 2014 in which defendant Amanda Garvey was allegedly injured. On or about November 3, 2014, plaintiff 160907/2014 COUNTRY-WIDE INSURANCE COMPANY vs. GARVEY, AMANDA Motion No. 003 1 of 4 Page 1of4 [*FILED: NEW YORK COUNTY CLERK 08/02/2017 12:04 PM 2] NYSCEF DOC. NO. 59 INDEX NO. 160907/2014 RECEIVED NYSCEF: 08/02/2017 commenced the captioned action against defendant Garvey and several medical providers which allegedly treated her for injuries arising from the incident. NYSCEF Doc. 1. 1 The claims against all of the medical providers except DHD Medical were dismissed by order of this court dated December 5, 2016. Doc. 37. The claim against DHD Medical was discontinued. In its verified complaint, plaintiff alleged that it was entitled to a declaration that defendants were not entitled to no-fault benefits pursuant to a policy of insurance it issued (policy number CS45 l 5802 l 3), which covered a vehicle involved in the accident, because Garvey breached the policy by failing to appear for an examination under oath ("EUO"). ' By order dated December I, 2016, this Court granted plaintiff a 60-day extension of time in which to serve Garvey. Doc. 36. Plaintiff served Garvey with the summons and complaint by substituted service pursuant to CPLR 308 (2) on January 6, 2017. Doc. 42. On May 25, 2017, plaintiff filed the instant motion, pursuant to CPLR 3215, for a default judgment against defendant Garvey based on her failure to answer or otherwise respond to the complaint. Docs. 44-45. LEGAL CONCLUSIONS: CPLR 3215(a) provides, in pertinent part, that "[w]hen a defendant has failed to appear, plead or proceed to trial..., the plaintiff may seek a default judgment against [it]." "On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof 1 All references are to documents filed with NYSCEF in connection with this matter. 2 of 4 160907/2014 COUNTRY-WIDE INSURANCE COMPANY vs. GARVEY, AMANDA P:>n .. ? nf 4 [*FILED: NEW YORK COUNTY CLERK 08/02/2017 12:04 PM 3] NYSCEF DOC. NO. 59 INDEX NO. 160907/2014 RECEIVED NYSCEF: 08/02/2017 ' of the defaulting party's default in answering or appearing." Atlantic Cas. Ins. Co. v RJNJ Servs. Inc., 89 AD3d 649, 651 (2d Dept 2011 ). Here, plaintiffs counsel has submitted the affidavit of a process server establishing service of the summons and complaint, proof of the facts constituting the claim in the form of the complaint verified by an officer of the plaintiff, and proof of defendant's failure to answer or otherwise respond. Thus, plaintiff has established each of the elements needed to establish its entitlement to a default judgment against Garvey. See Atlantic Cas. Ins. Co. v RJNJ Servs. Inc., 89 AD3d 649 at 651. Therefore, in accordance with the foregoing, it is hereby: ORDERED that the motion by plaintiff Country-Wide Insurance company for a default judgment against defendant Amanda Garvey is granted; and it is further ORDERED and ADJUDGED that defendant Amanda Garvey is not an insured under policy number CS4515802 l 3 issued by plaintiff Country-Wide Insurance Company; and it is further ORDERED that plaintiff is to serve a copy of this order with notice of entry on defendant, the County Clerk's Office (Room 141B) and the Clerk of the Trial Support Office (Room 158) within 30 days hereof; and it is further 3 of 4 160~07/2014 COUNTRY-WIDE INSURANCE COMPANY vs. GARVEY AMANDA Motion No. 003 ' Page 3 of4 [*FILED: NEW YORK COUNTY CLERK 08/02/2017 12:04 PM 4] NYSCEF DOC. NO. 59 INDEX NO. 160907/2014 RECEIVED NYSCEF: 08/02/2017 ORDERED that the action is dismissed and the Clerk is directed to enter judgment accordingly; and it is further ORDERED that this constitutes the decision and order of this Court. 8/1/2017 DATE CHECK ONE: CAS~ DISPOSED. GRANTED D ·DENIED ·o NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 160907/2014 COUNTRY-WIDE INSURANCE COMPANY vs. GARVEY, AMANDA Motion No. 003 4 of 4 D D OTHER REFERENCE · Page4 of 4

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