Motor Veh. Acc. Indem. Corp. v Hernandez

Annotate this Case

Download PDF

Motor Veh. Acc. Indem. Corp. v Hernandez 2017 NY Slip Op 32516(U) November 29, 2017 Supreme Court, New York County Docket Number: 450334/2017 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/01/2017 01:59 PM 1] NYSCEF DOC. NO. 21 INDEX NO. 450334/2017 RECEIVED NYSCEF: 12/01/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED PART 2 Justice ----------------------------------------------------------------~-------------X MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, · INDEX NO. Plaintiff, 450334/2017 MOTION DATE - vMOTION SEQ. NO. ASHL YE HERNANDEZ and MILTON HERNANDEZ, Defendants. 001 DECISION AND ORDER -------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, it is ordered that the motion is denied. Plaintiff Motor Vehicle Accident Indemnification Corporation ("MVAIC") moves, pursuant to CPLR 3215, for a default judgment against defendant Milton Hernandez to recover the sum of $2,642.00, plus interest from May 1, 2016, for reimbursement of money it expended pursuant to Articles 51 and 52 of the New York State Insurance Law (''Insurance Law"). The said amount is allegedly owed to MV AIC for expenses incurred in its investigation of an accident involving a motor vehicle owned by defendant Ashlyc V. Hernandez and operated by defendant Milton Hernandez on May 1, 2016. MVAIC allegedly incurred these investigatory expenses due to the failure by defendant Ashlye V. Hernandez to carry legally required motor vehicle insurance. 450334/2017 MOTOR VEHICLE ACCIDENT vs. HERNANDEZ, ASHLYE V Motion No. 001 · · 1 of 4 Page 1of4 [*FILED: NEW YORK COUNTY CLERK 12/01/2017 01:59 PM 2] NYSCEF DOC. NO. 21 INDEX NO. 450334/2017 RECEIVED NYSCEF: 12/01/2017 Factual and Procedural Background: In an August 9, 2017 affidavit of indebtedness submitted in support of.the motion Fred Fossett, President of MY AIC, states that, on May 1, 2016. Shadia Herrera and Milton Hernandez were injured in an accident involving a motor vehicle owned by defendant Ashlye V. Hernandez and operated by defendant Milton Hernandez. Doc. 15, at par. 3. 1 MY AIC, in its role as a corporation created pursuant to Article 52 of the Insurance Law, has the statutory responsibility of processing claims and compensating innocent victims of motor vehicle accidents caused by financially irresponsible motorists. Id., at par. 2. Pursuant to section 5209 of the Insurance Law, MY AIC undertook an investigation which revealed that defendants were liable to MY AIC since the insurance policy on defendant Ashlye V. Hernandez's vehicle expired on September 28, 2015. Id., at pars. 4-5. As a first cause of action, MY AIC claims that the investigation it undertook cost $2,642.00 and it seeks recovery of this amount from defendants Ash lye V. Hernandez and Milton Hernandez. Doc. 12, at pars. 1-5; Doc. 13, at pars. 6-7. 2 MVAIC, by its attorney, Robyn S. Drew, Esq., avers that defendant Milton Hernandez was served with the summons and complaint pursuant to Vehicle and Traffic Law section 254 on May 12, 2017 and, although he was served with an additional copy of the summons and complaint pursuant to CPLR 32 l 5(g), he has failed to answer or otherwise appear in this action. .Doc. 8, at pars. 6-8; Doc. 14. Therefore, MY AIC asks that its motion for a default judgment be granted against defendant Milton Hernandez in the sum of $2,642.00. In support of the motion, MVAIC also submits the summons and complaint (Doc. 12); a statement of the monies allegedly owed to MY AIC (Doc. 16); a non-military affidavit (Doc. 17); the police report of the subject accident 1 All references are to the documents filed with NYSCEF in connection with this action. As a second cause of action, MY AIC claims that defendant Ash lye V. Hernandez owes it $11,308.62 for monies which it paid to Shadia Herrera and Milton Hernandez as a result of the accident. Doc. 12, at pars. 6-8. Defendant Ashlye V. Hernandez has answered the complaint. Doc. 6. 2 450334/2017 MOTOR VEHICLE ACCIDENT vs. HERNANDEZ, ASHLYE V. Motion No. 001 2 of 4 Page 2 of 4 [*FILED: NEW YORK COUNTY CLERK 12/01/2017 01:59 PM 3] NYSCEF DOC. NO. 21 INDEX NO. 450334/2017 RECEIVED NYSCEF: 12/01/2017 (Doc. 18); and a letter dated June 16, 2016 reflecting that the insurance policy issued to defendant Ashlye V. Hernandez expired on September 28, 2015, prior to the alleged accident. Doc. 19. Conclusions of Law: 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 him." It is well settled that "[ o ]n 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 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). "Given that in default proceedings the defendant has failed to appear and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable.a court to determine that a viable cause of action exists (see 7 Weinstein-Korn-Miller, NY Civ Prac iJ 3215.24, at 32-326)." Woodwn v Mendon Leasing Corp .. 100 NY2d 62, 70-71 (2003). In the case at bar, MVAIC has submitted its summons and complaint, along with the affidavit of service of the same on Milton Hernandez; an affidavit of additional mailing of the summons and complaint on Milton Hernandez; an affidavit of indebtedness containing the facts constituting the claim; and a statement listing all payments owed to plaintiff arising from the alleged accident, including the sum of $2,642.00 claimed against defendant Milton Hernandez. However, a review of the complaint reveals that MV AIC has not set forth facts sufficient to persuade this Court that its first cause of action is viable. Indeed, MV AIC simply claims that defendants owe it the sum above without setting forth any legally cognizable reason why this is so. Thus, this Court is constrained to deny the motion. 450334/2017 MOTOR VEHICLE ACCIDENT vs. HERNANDEZ, ASHLYE V Motion No. 001 3 of 4 Page 3 of 4 [*FILED: NEW YORK COUNTY CLERK 12/01/2017 01:59 PM 4] NYSCEF DOC. NO. 21 INDEX NO. 450334/2017 RECEIVED NYSCEF: 12/01/2017 Therefore, in accordance with the foregoing, it is hereby: ORDERED that the motion by the plaintiff Motor Vehicle Accident Indemnification Corporation for a default judgment as against defendant Milton Hernandez on its first cause of action is denied; and it is further ORDERED that plaintiff Motor Vehicle Accident Indemnification Corporation, shall serve a copy of this order on defendants Ashlye V. Hernandez and Milton Hernandez and the Trial Support Office at 60 Centre Street, Room 158; and it is further, ORDERED that this constitutes the decision and order of this Court. 11/29/2017 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED § NON-FINAL DISPOSITION [~] DENIED GRANTED IN PART SUBMIT ORDER . SETTLE ORDER DO NOT POST FIDUCIARY APPOINTMENT 450334/2017 MOTOR VEHICLE ACCIDENT vs. HERNANDEZ, ASHLYE V Motion No. 001 4 of 4 D OTHER D REFERENCE Page 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.