Certain Underwriters at Lloyd's of London v Bellettieri, Fonte & Laudonio, P.C.

[*1] Certain Underwriters at Lloyd's of London v Bellettieri, Fonte & Laudonio, P.C. 2008 NY Slip Op 51018(U) [19 Misc 3d 1136(A)] Decided on April 28, 2008 Supreme Court, Westchester County Scheinkman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2008
Supreme Court, Westchester County

Certain Underwriters at Lloyd's of London Subscribing to Lawyers Professional Liability Policies of Insurance Designated by Policy No. Rpg0001841, and Covering the Periods October 19, 2003 to October 19, 2004, October 19, 2004 to November 18, 2005, November 18, 2005 to November 18, 2006 and November 18, 2006 to November 18, 2007, Plaintiffs,

against

Bellettieri, Fonte & Laudonio, P.C. (formerly known as Bellettieri & Fonte, P.C.), Anthony Bellettieri, Robert V. Fonte, and Tara A. Laudonio, Defendants.



07/10015



APPEARANCES:

LONDON FISCHER, LLP

By: Harvey A. Feintuch, Esq.

Attorneys for Plaintiffs

59 Maiden Lane, 41st Floor

New York, New York 10038

Neal S. Comer, Esq.

Attorney for Defendants Robert V. Fonte and Tara A. Laudonio

445 Hamilton Avenue

White Plains, New York 10601-1827

Alan D. Scheinkman, J.

Plaintiffs move, pursuant to CPLR 3215, for an order directing that judgment by default be entered in favor of Plaintiffs and against Defendants Bellettieri, Fonte & Laudonio, P.C. (the "Law Firm") and Anthony Bellettieri ("Bellettieri"). Plaintiffs [*2]also seek an order severing the action as to Defendants Robert V. Fonte ("Fonte") and Tara A. Laudonio ("Laudonio"), who have appeared in the action and answered the Verified Complaint.

BACKGROUND AND FACTS

This action is one of the sequella of the criminal conduct of Bellettieri who, on February 15, 2007, pled guilty to one count of Bank Fraud and one count of Mail Fraud arising from a "check-kiting" scheme and other fraudulent conduct. Bellettieri admitted to massive thefts of some $20 million, a significant part of which resulted from the siphoning off of monies from bank accounts maintained by the Law Firm during the period from 2003 through November, 2006. At least three actions have been commenced against Bellettieri, the Law Firm, Fonte, and Laudonio and numerous other claims have been made and grievances have been filed (collectively the "Claims").

Plaintiffs subscribed to four lawyers' professional liability policies of insurance insuring the Law Firm, and providing coverage for its members, for four consecutive years, from October 19, 2003 to November 18, 2007. In general terms, while the policies exclude coverage for criminal conduct or intentional acts, the policy in place for November 2006 to November 2007 also provides that any such exclusion would not apply to any insured who did not personally participate or acquiesce or remain passive after having personal knowledge of the wrongdoing. Fonte and Laudonio are endeavoring to rely on this "innocent insureds" provision in order to have insurance cover the cost of defense of the Claims and indemnify them from any payments out of their personal assets.

Perhaps in order to short-cut the need to litigate over the "innocent insureds" provision, Plaintiffs have brought this action in which they contend that each of the four policies of insurance are void ab initio and/or should be rescinded. Plaintiffs assert that each of the applications for these insurance policies contained misrepresentations or non-disclosures of material fact. Plaintiffs contend that each application represented that no attorney of the Law Firm was aware of any circumstances, incident, act or omission during the preceding year that might reasonably be expected to be the basis of a claim or suit arising out of professional services for others. Since Bellettieri has admitted that he was engaged in the misappropriation and theft of millions of dollars of client funds during this entire time period, it seems clear that there was at least one attorney of the Law Firm, Bellettieri, who was aware of circumstances, incidents, acts or omissions during the applicable periods that might reasonably be expected to be the basis of a claim or suit.

Fonte and Laudonio assert that they were unaware of Bellettieri's crimes, that Bellettieri took measures to conceal his conduct from them and that they were, therefore, unaware of any circumstances, incidents, acts or omissions that might be expected to be the basis of any claim or suit, that they did not complete or sign any of the applications for insurance, and that as "innocent insureds", insurance cannot be void [*3]ab initio or rescinded as to them. Defendants Fonte and Laudonio further contend that Plaintiffs have breached their fiduciary duty to defend or indemnify them with respect to the Claims, and that they are entitled to select their own counsel to represent them in defending the lawsuits arising from Bellettieri's conduct.

THE MOTION FOR A DEFAULT JUDGMENT

Plaintiffs move for a default judgment against Bellettieri and the Law Firm.

A. Bellettieri

Plaintiffs assert that they effected service upon Bellettieri by service upon Murray Richman, Esq. ("Richman"). Plaintiffs' counsel avers that, on May 24, 2007 (after Bellettieri had pleaded guilty to the federal criminal charges and was awaiting sentencing), he spoke with Richman, who was representing Bellettieri in the criminal case, and was told by Richman that he, Richman, was authorized to accept, and was accepting service on behalf of Bellettieri of several lawsuits. Richman also stated, says Plaintiffs' counsel, that Bellettieri was not defending the lawsuits but was rather defaulting and would most likely default on any lawsuit commenced by Plaintiffs. Plaintiffs' counsel attests that Richman told him that he, Richman, was authorized to accept, and would accept, service of Plaintiffs' Summons and Verified Complaint in this action by delivery of said papers to his law office in the Bronx.

This action was commenced by filing of the Summons and Verified Complaint with the Clerk of the County of Westchester on May 30, 2007. According to an affidavit submitted by Clifton Wiggins, on May 30, 2007, at 1:30 p.m., he served the Summons and Complaint by delivering them to the receptionist at Richman's office. He also delivered a letter in which Plaintiffs' counsel reiterated the May 24 telephone conversation in which Richman agreed to accept service.

Because the Court had concerns with whether proper service was made, the Court afforded Plaintiffs' counsel the opportunity to obtain an affirmation from Richman. An affirmation was transmitted by facsimile to this Court by Richman on April 23, 2008, which was actually signed by Richman's daughter (an attorney) who signed Richman's name (indicating that it was not actually signed by Richman) after reading the affirmation to Richman and obtaining his authorization for her to sign his name. The next day, April 24, 2008, the Court received by facsimile from Plaintiffs' counsel an affirmation actually signed by Richman which was identical in content to the one signed on his behalf by his daughter. Plaintiffs' counsel also submitted a letter explaining these circumstances. In the affirmation, Richman states that he was the attorney of record for, and actually represented, Bellettieri in the federal criminal case and that, during 2007, Bellettieri authorized him and his law firm to accept service of process in connection [*4]with several civil actions, including this one. Richman confirmed that, in May, 2007, he told Plaintiffs' counsel that, while Bellettieri would most likely default in any action brought by Plaintiffs, he, Richman, told Plaintiffs' counsel that he would accept service of process on Bellettieri's behalf by delivery of the papers to his law office. Richman asserts that, "[i]n view of [his] limited authorization from Mr. Bellettieri and [his] advice to [Plaintiff's counsel], a representative of [Plaintiff's counsel] delivered to [his] office on May 30, 2007," a copy of the Summons and Verified Complaint. Richman asserts that this "constituted valid service of process" upon Bellettieri. This Court disagrees.

The methods for effectuating service of process upon a natural person are set forth in CPLR 308. Such methods are carefully prescribed by the Legislature and those methods provide ample means by which plaintiffs may serve defendants with process in a fashion which will give rise to personal jurisdiction in conformity with constitutional due process and our notions of fundamental fairness. "Regularity of process, certainty and reliability for all litigants and for the courts are highly desirable objectives to avoid generating collateral disputes....These objectives are served by adherence to the statute and are disserved by judicially engrafted exceptions...." Dorfman v. Leidner, 76 NY2d 956, 958 (1990).

CPLR 308(subd. 1) authorizes delivery of the process "to the person to be served". This statute is applied in accordance with its "plain and literal language", Dorfman v. Leidner, supra, 76 NY2d at 957-958, and requires service be made upon the defendant or upon a person who is in the proximity and view of the defendant. Espy v. Giorlando, 85 AD2d 652, 653 (2d Dept. 1981), affirmed, 56 NY2d 640 (1982). Thus, service upon defendant's attorney was acceptable when, during an examination before trial, process in connection with new litigation was handed to defendant's attorney, who was representing defendant during the examination before trial, and defendant was just a few feet away and was fully apprised of the nature and character of the papers delivered to his attorney. Davidman v. Ortiz, 63 Misc 2d 984 (Sup. Ct. Queens County 1970) (Frank D. O'Connor, J.). Here, the papers were delivered to Richman's receptionist. There is no claim that Bellettieri was present at the time. There is no indication that Bellettieri ever was advised of the nature and character of the papers delivered to his criminal defense lawyer's receptionist or even that he was advised that this lawsuit had been commenced against him. Thus, there is no showing that Bellettieri witnessed the service of papers, was in the vicinity when the papers were served or was made aware of the fact and manner of service. See, e.g., Selby v. Jewish Memorial Hospital, 130 AD2d 651 (2d Dept. 1987).

The only other subdivision of CPLR 308 relevant here is CPLR 308 (subd. 3) which permits service to be made upon "the agent for service of the person to be served as designated under rule 318" of the CPLR. CPLR 318, which is incorporated in CPLR 308 (subd. 3), permits a defendant to designate an agent for service in a signed, acknowledged writing filed with the County Clerk. Plaintiffs do not contend that Bellettieri executed a written, acknowledged designation of Richman as agent for the service of process. Thus, Richman does not qualify as Bellettieri's designated agent. [*5]Pergament Distributors, Inc. v. Net Realty Holding Trust, 120 AD2d 578 (2d Dept. 1986); Preferred Electric & Wire Corp. v. Duracraft Products, Inc., 114 AD2d 407 (2d Dept. 1985).

Attorneys are not automatically considered the agents of their clients for the purposes of the service of process. See, e.g., Matter of Fagelson v. McGowan, 301 AD2d 652 (2d Dept. 2003), leave to appeal denied, 100 NY2d 503 (2003); Broman v. Stern, 172 AD2d 475 (2d Dept. 1991). While Richman asserts that he was authorized by Bellettieri at some unspecified time in 2007 to accept service of process in connection with several civil lawsuits, including this one, and it is established that Richman told that to Plaintiffs' counsel, it is established that the representations of the person who accepts process are not binding on the defendant in the absence of proof that the defendant knew of the representations. Broman v. Stern, 172 AD2d 475 (2d Dept. 1991); Charles H. Greenthal & Co., Inc. v. 301 East 21st Street Tenants' Association, 91 AD2d 934 (1st Dept. 1983). Here, the assertion that Bellettieri gave Richman authority to accept service is wholly conclusory and there is no claim that Richman told Bellettieri of the conversation with Plaintiff's counsel or that Richman ever informed Bellettieri that service had been made. While it is true that Richman held himself out as an agent for service upon Bellettieri, see 6 Davis Associates, Inc. v. Rye Castle Apartment Owners, Inc., 242 AD2d 528 (2d Dept. 1997), it remains that there is no evidence, apart from Richman's statements, that Bellettieri had any knowledge that Richman was doing so. Further, while Richman attests to Bellettieri's giving him authority to accept service in several lawsuits, he does not claim that, after his May 2007 conversation with Plaintiffs' counsel, he spoke with Bellettieri and obtained confirmation of his authority to make the statements he made to Plaintiffs' counsel. There is no evidence at all that, after service was made, Bellettieri ever was informed that service had been made. While, in the May 2007 conversation with Plaintiffs' counsel, and prior to the service of the papers upon his office, Richman predicted that Bellettieri would probably would default in this action, there is no evidence that Richman discussed this case with Bellettieri and was advised by Bellettieri that he had chosen to default.

For these reasons, there is no evidence that Bellettieri was made aware of this action and no evidence that Bellettieri's failure to respond to the Summons and Verified Complaint was deliberate.

It is hardly uncommon for attorneys to agree to accept service on behalf of their clients. If Richman had interposed an answer (which did not assert a defense based upon improper service), had served a notice of appearance in this case, see Queens Examination Center, Inc. v. Ajax One Company, 42 AD2d 554 (1st Dept. 1973) or had executed an acknowledgment of service in response to service by mail under CPLR 312-a, see Jefferson Heights Quarry, Inc. v. Fort Pike Associates, 207 AD2d 984 (4th Dept. 1994), then the outcome would be different. But notably, Richman was Bellettieri's criminal defense attorney and Richman does not assert that he ever was retained or even consulted by Bellettieri with respect to civil litigation. [*6]Moreover, even if Richman was to be Bellettieri's attorney in this case, the authority conveyed by CPLR 2103 to serve interlocutory papers upon an attorney who appears for a party in an action does not attach until the initiatory papers are served upon the party. See Lord Day & Lord, Barrett, Smith v. Broadwall Management, Inc., 187 Misc 2d 518, 519 (Sup. Ct. NY County 2001), affirmed, 301 AD2d 362 (1st Dept. 2003).

That Richman apparently also accepted service in other cases does not change the result. See Dorfman v. Leidner, 76 NY2d 956, 958 (1990). Significantly, there is no evidence that Plaintiffs attempted to serve Bellettieri, either by attempting to deliver the process directly to him, by attempting to deliver them to a person of suitable age and discretion at his office or residence and mailing them, or by attempting to affix them to his office or abode and mailing them. Nor is there any evidence that either Bellettieri or Richman attempted to frustrate Plaintiffs' ability to effect service or lull them into relying upon service on Richman. See Dorfman v. Leidner, 150 AD2d 935 (3d Dept. 1989), affirmed, 76 NY2d 956 (1990).

The Court also notes that the present motion was served upon Bellettieri by mail directed to the Law Firm's office address and by mail to Richman's office. No information has been provided as to whether the Law Firm is still in business and in occupancy at that address. Richman, though on notice of this application and having submitted an affirmation, did not respond to it and his affirmation is silent as to whether he is still in communication with Bellettieri and, if so, whether he advised him as to the pendency of the motion.

The burden of proving jurisdiction rests with the party asserting it. Preferred Electric & Wire Corp. v. Duracraft Products, Inc., 114 AD2d 407 (2d Dept. 1985). On the facts presented, the Court concludes that Plaintiffs have not met their burden. Instead, the Court is left with the distinct impression and concern that Bellettieri was not made aware of the pendency of this action and that, should a default judgment be entered against Bellettieri, he would have a meritorious basis for setting it aside on the ground that jurisdiction over him was not acquired, a contention that he could assert at any time in the future. See CPLR 5015 (a)(4); see Siegel, Practice Commentary C5015:3, Book 7B, McKinney's Cons. Laws of NY, CPLR 5015, at 206 ("Laches can't confer on a court jurisdiction it doesn't have."). The Court declines to enter a default judgment whose validity would be so questionable. Service must be made in conformity with the statutory requirements and, because of the interests in enforcing orderly procedure and the need to protect all who may be concerned with the validity of court judgments, there must be "certain and unequivocal proof" that proper service was made. Marcy v. Woodin, 18 AD2d 994 (3d Dept. 1963).

The Court notes that, even if service had been properly effectuated upon Bellettieri, it would still be constrained to deny Plaintiffs' application for a default judgment against Bellettieri for the reasons set forth infra in connection with Plaintiffs' motion for a default judgment against the Law Firm.

[*7]B.The Law Firm Was Served Properly

The Law Firm is stated to have been formed as a professional corporation. As a professional corporation, it was subject to being served with process in accordance with the provisions of the Business Corporation Law. See Business Corporation Law, §§1513, 306. Denise L. Dooley submits an affidavit in which she states that she served the Law Firm on June 1, 2007 by delivering two copies of the Summons and Verified Complaint to Donna Christie, an employee of the Corporation Division of the Secretary of State, in Albany, New York and paying the prescribed fee.

As to the Defendant law firm, counsel for Plaintiffs provided an affidavit of Denise L. Dooley, sworn to on June 1, 2007, attesting to the fact that on June 1, 2007 Ms. Dooley served the Summons and Verified Complaint in this action upon the Defendant law firm pursuant to Section 306 of the New York Business Corporation Law by personally delivering to and leaving with the Corporation Division of the Department of State two copies of the Summons and Complaint and paying the required fee. In addition, Plaintiffs' counsel, on that same date and after having been advised by Ms. Dooley that she had delivered the papers to the Secretary of State, mailed another copy of the papers, together with a Notice, to the Law Firm, at its last known address. The Notice advised the Law Firm that service had been made pursuant to Section 306 of the Business Corporation Law. The Court notes that copies of the papers on this motion were also served upon the attorney who appears for Fonte and Laudonio in this action.

The Court finds that valid service was effected upon the Law Firm in accordance with the provisions of Section 306 of the Business Corporation Law. See Shimel v. 5 South Fulton Avenue Corp., 11 AD3d 527 (2d Dept. 2004). The Court also finds that Plaintiff has complied with the requirement of CPLR 3215(g)(4), which mandates that, before a default judgment may be entered against a corporation served pursuant to Business Corporation Law Section 306, an additional copy of the process, together with a notice advising the corporation that service has been made under the Business Corporation Law, must be mailed to the corporation at its last known address.

The Law Firm has not timely appeared, though duly served and though at least two of its members are charged with knowledge of the pendency of both the action and this motion for a default judgment.

C.The Propriety of Entry of a Default Judgment

The Law Firm is in default and the Court must consider whether it is appropriate to enter a default judgment against the Law Firm.

Default judgments are not to be rubber-stamped once jurisdiction and failure to appear are shown. Proof must still be submitted to satisfy the Court, at least prima facie, as to the viability of the uncontested cause of action. Joosten v. Gale, 129 [*8]AD2d 531, 535 (1st Dept. 1987); see CPLR 3215 (b), (f). Even if there appears to be no opposition, the Court should not exercise its power, whether statutory or inherent, in a manner or under circumstances where it could work an injustice to litigants or to non-parties. Rivera v. Laporte, 120 Misc 2d 733, 735 (Sup. Ct. NY County 1983) (Martin Evans, J.). This is no less true in declaratory judgment actions; perhaps it is even more true since declaratory relief is a discretionary remedy which should be granted only where necessary to serve some useful purpose of the parties. Frasca v. Frasca, 129 AD2d 766, 767 (2d Dept. 1987); accord, Smyley v. Tejada, 171 AD2d 660 (2d Dept. 1991). It has been said that declaratory relief should rarely, if ever, be granted solely upon default and without inquiry by the court into the merits. Tannenbaum v. Allstate Insurance Co., 66 AD2d 683 (1st Dept. 1978). Declaratory judgment should not be granted unless the plaintiff establishes prima facie entitlement to the relief sought, Levy v. Blue Cross and Blue Shield of Greater New York, 124 AD2d 900, 902 (3d Dept. 1986), and may not be granted where the judgment would affect the rights of other parties not in default or would affect the rights of non-parties. Merchants Mutual Insurance Co. v. Long Island Pet Cemetery, Inc., 206 AD2d 827 (4th Dept. 1994); Unitrin Advantage Insurance Co. v. Carothers, 17 Misc 3d 1121(A) (Sup. Ct. NY County 2007); New South Insurance Co. v. Dobbins, 2007 WL 4377694 (Sup. Ct. Nassau County 2007).

In this case, Plaintiffs seek only declaratory relief, predominately. They seek a declaration holding that the insurance policies issued to the Law Firm are void ab initio, that no coverage is afforded thereby or is excluded, and that they have no obligations to provide any coverage for the Claims brought against Defendants, including the claims asserted in particular actions.

Plaintiffs also seek unspecified monetary damages against the Law Firm. It is alleged that, pending the outcome of this action, Plaintiffs retained counsel to represent the Law Firm in an action brought by Credit Suisse Financial Corporation in the United States District Court, Southern District of New York, and also retained counsel to represent the Law Firm in an action brought in Supreme Court, Nassau County, by United Northern Mortgage Bankers, Ltd. and Don Giorgio. Plaintiffs claim that this representation was extended under and subject to a reservation of rights and Plaintiffs seek recovery from the Law Firm for the amounts expended in the defense of these litigations. In seeking a default judgment, Plaintiffs have not offered any evidence of the amounts expended. Since Plaintiffs have not carved out their monetary claims against the Law Firm from their request for a default judgment against it, but have not submitted any evidence as to the amount that they should be awarded, their request for a default judgment must certainly be denied as to the monetary claims. See CPLR 3215(f) (applicant for default judgment must offer proof by affidavit as to the amount due).[FN1] [*9]

Significantly, the Court observes that Plaintiffs also have asserted claims against Fonte and Laudonio based upon Plaintiffs' retention of defense counsel for them in the two cited litigations. It is not clear from the Verified Complaint whether the counsel retained by Plaintiffs for Fonte and Laudonio are the same as the counsel retained by Plaintiffs for the Law Firm. Plaintiffs have not addressed in their motion what the impact of the default judgment that they seek against the Law Firm would be. Specifically, Plaintiffs have not stated whether, upon the issuance of a default judgment against the Law Firm, they would terminate the representation being accorded the Law Firm only or whether they would also seek to terminate the representation being provided to Fonte and Laudonio as well. Further, while both of the actions are said to have been commenced in December, 2006, Plaintiffs have not provided any information as to the present status of such litigations. Termination of representation of the Law Firm, and the withdrawal of counsel, could well delay the progress of the cases and cause prejudice to the plaintiffs therein, who are non-parties here. On the other hand, if the representation being afforded to the Law Firm is the same as that being afforded to Fonte and Laudonio, it is at least possible counsel in those cases would continue to represent Fonte and Laudonio and, therefore, the default judgment would not have any present practical effect.

On this motion, Plaintiffs, recognizing that Fonte and Laudonio have appeared and are defending this action, ask for a default judgment against the Law Firm and for a severance as to Fonte and Laudonio. However, Plaintiffs have not explained how it is plausible to enter a default judgment declaring that the policies are void as against the Law Firm though litigation must continue as to whether the policies provide coverage as to Fonte and Laudonio. Nor have Plaintiffs explained what effect, if any, a declaratory judgment voiding the policies as to the Law Firm would have if such a judgment has no impact on the rights, if any, of Fonte and Laudonio. A declaratory judgment should not be issued unless it would serve some useful purpose and it not has not been established that a default judgment against the Law Firm only would serve any useful, practical purpose in the absence of an adjudication as to Fonte and Laudonio.

Plaintiffs have submitted insurance renewal applications, signed by Bellettieri, which did not disclose the massive defalcations that Bellettieri confessed to in his guilty plea. However, the policies purport to provide coverage to other insureds who were innocent of the conduct and unaware of it. Thus, the principal issues to be decided here are whether any misrepresentation or failure to disclosure in the applications voids the policies, even as to innocent insureds, and, assuming the policies are not void, whether Fonte and Laudonio may rely upon the innocent insured provisions. [*10]

In National Surety Corporation v. Peccichio, 48 Misc 2d 77 (Sup. Ct. Albany County 1965), then Justice Lawrence H. Cooke ruled that a court must refuse a declaratory judgment in the absence of one or more persons who are interested in, or might be affected by, the enforcement of the rights and legal relations concerning which a declaration is sought and who might question the existence and scope of such rights. Here, while Fonte and Laudonio are parties to this action, they are absent from this application in the sense that no relief is being sought against them. They could question the existence and scope of any default judgment against the Law Firm, as could, potentially, the plaintiffs in the pending actions against the Law Firm, should they obtain judgment against the Law Firm.

The decision in National Surety Corporation directs the outcome of this case. There, an insurance company sought a declaration that it did not issue a policy to two defendants, bringing a declaratory judgment against the two purported insureds and against the persons who had sued them for injuries arising from an automobile accidents. The purported insureds defaulted in the declaratory judgment action, though those suing them in tort did not default. The insurance company sought a default judgment against the purported insureds and a severance of the declaratory judgment action against the appearing defendants. Justice Cooke denied the default judgment, ruling that the provision of CPLR 3215 authorizing a severance of the action as against appearing defendants "applies only if a separate judgment may be entered against the defaulting defendant under applicable substantive law." 48 Misc 2d at 78.

The situation presented in this case is the same as that presented in National Surety Corporation. Should Fonte and Laudonio prevail in this action, and a declaratory judgment issue that they are entitled to the protection of the policies issued by Plaintiffs, such a determination would be fundamentally inconsistent with the declaration that Plaintiffs would have the Court issue now as against the defaulting Law Firm that the policies are void. Thus, the granting of a default and severance could lead to fundamentally inconsistent judgments. Further, it appears that the interests of Bellettieri, the Law Firm, Fonte, and Laudonio in the polices are joint, see Nathan v. Zierler, 223 A.D. 355 (3d Dept. 1928); at least, Plaintiffs have not shown that their interests are capable of severance.

The granting of a default and severance could potentially lead to fundamentally inconsistent judgments a result that could impact upon the rights of non-parties. To the extent that a default declaratory judgment as to the Law Firm would have no impact on Fonte and Laudonio or any one else, it would be a meaningless exercise until the balance of this case is heard. On the other hand, to the extent that such a default judgment would impact the rights of Fonte, Laudonio, or the persons suing to recover because of Bellettieri's misconduct, it would not quiet or stabilize the disputed jural relations but only serve to engender further litigation and controversy. Thus, the granting of Plaintiffs' motion would not "serve some practical end". 48 Misc 2d at 77.

[*11]For these reasons, even though the Law Firm has defaulted, the Court declines to grant a default declaratory judgment against it. Likewise, even if it were assumed that proper service was made on Bellettieri and he had defaulted, the Court would decline to enter a declaratory judgment based upon his default.

CONCLUSION

The Court has considered the following papers:

a) Notice of Motion dated January 24, 2008; the affidavit of Harvey A. Feintuch, Esq. sworn to January 24, 2008, together with the exhibits annexed thereto; the affidavit of Clifton Wiggins, sworn to May 30, 2007; and affidavit of Denise L. Dooley, sworn to June 1, 2007;

b) the affirmation of Murray Richman, Esq., dated April 22, 2008, which was not executed by him but by his daughter;

c) letter dated April 24, 2008 from Harvey A. Feintuch, Esq. and the affirmation of Murray Richman, Esq., dated April 24, 2008.

Accordingly, for the reasons stated and based upon the papers aforesaid, it is hereby

ORDERED that the motion by Plaintiffs Certain Underwriters at Lloyds of London Subscribing to Lawyers Professional Liability Policies of Insurance designated by Policy No. RPG0001841 and covering the periods October 19, 2003 to October 19, 2004, October 19, 2004 to November 18, 2005, November 18, 2005 to November 18, 2006, and November 18, 2006 to November 18, 2007, made pursuant to CPLR 3215, for the entry of a default judgment as against Defendants Bellettieri, Fonte & Laudonio, P.C. and Anthony Bellettieri and for a severance of the action as against Defendants Robert V. Fonte and Tara A. Laudonio is denied in all respects.

The foregoing constitutes the Decision and Order of this Court.

Dated:White Plains, New York

April 28, 2008

E N T E R :

________________________ [*12]

Alan D. Scheinkman

Justice of the Supreme Court

APPEARANCES:

LONDON FISCHER, LLP

By: Harvey A. Feintuch, Esq.

Attorneys for Plaintiffs

59 Maiden Lane, 41st Floor

New York, New York 10038

Neal S. Comer, Esq.

Attorney for Defendants Robert V. Fonte and Tara A. Laudonio

445 Hamilton Avenue

White Plains, New York 10601-1827 Footnotes

Footnote 1:While a Verified Complaint, even one verified by counsel (as here), may be used in lieu of an affidavit (see CPLR 3215[f]), the pleading here simply asks for a judgment against the Law Firm "in an amount to be determined at trial"). No time records, bills, or proofs of payment relating to counsel fees in the litigations brought against the Law Firm have been tendered.