Progressive Northeastern Ins. Co. v Boatwright

[*1] Progressive Northeastern Ins. Co. v Boatwright 2010 NY Slip Op 51521(U) [28 Misc 3d 1228(A)] Decided on August 27, 2010 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 27, 2010
Supreme Court, Kings County

Progressive Northeastern Insurance Company, Plaintiff,

against

Cheryl Boatwright, Desmond A. Thomas, Embethe Transportation, Inc. and Martin Williams, Defendants.



6789/08



Attorney for Plaintiff Progressive Northeastern Insurance Company

Carman, Callahan & Ingram

Of Counsel: Tracy S. Reifer, Esq.

226 Main Street

Farmingdale, New York 11735

(516) 249-3450

Attorney for Defendant Desmond A. Thomas

Law Offices of Nancy L. Isserlis

Of Counsel, Francis M. Cerniglia, Esq.

36-01 43rd Avenue

Long Island City, New York 11101

(718) 361-1514

Francois A. Rivera, J.

By notice of motion filed on March 23, 2010, under motion sequence number four, plaintiff Progressive Northeastern Insurance Company ("Progressive") moves pursuant to CPLR § 3212 for an order granting it summary judgment in its favor against defendants Cheryl Boatwright ("Boatwright"), Desmond A. Thomas ("Thomas"), Embethe Transportation, Inc. ("Embethe"), and Martin Williams ("Williams") in an action for a declaratory judgment.

BACKGROUND

On March 3, 2008, Progressive commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Thomas joined issue by his verified answer dated November 11, 2008. Progressive's motion papers do not state whether defendants Boatwright, Embethe or Williams have answered the complaint.The instant verified complaint contains thirty eight allegations of fact in support of a single cause of action seeking a declaratory judgment that Progressive: [*2] a) is not obligated, under the policy it issued under Business Policy No. 03621713-0, to provide coverage for Embethe or for Williams in connection with the action pending in Kings County Supreme Court under index number 34252/2007 ("the underlying action") ;b) is not obligated to defend Embethe or Williams in the aforementioned action; and;

c) is not obligated to indemnify or provide coverage for Embethe or Williams.

The underlying action is one for damages due to personal injuries allegedly incurred in an automobile accident ("the subject accident").

MOTION PAPERS

Progressive's motion papers consist of an attorney's affirmation and seven annexed exhibits labeled A through G. Exhibit A is a copy of plaintiff's summons and verified complaint. Exhibit B is a copy of the summons and complaint filed in the underlying action bearing index number 34252/2007. Exhibit C is a copy of Thomas' answer to the complaint in the instant action. Exhibit D is an affidavit of Edward Connelly, Progressive's claims adjuster. Exhibit E is a copy of the insurance policy at issue in the instant action. Exhibit F is a number of disclaimer letters issued by Progressive. Exhibit G is a number of letters addressed to Progressive.

Defendant Thomas opposes the motion with an affirmation of his counsel and seven annexed exhibits labeled A through G. Exhibit A is a copy of certain pages of the transcript of the November 11, 2008 deposition of Williams. Exhibit B is a copy of a letter from Progressive to Thomas. Exhibit C is identified as a copy of a print-out of Progressive's policy notes. Exhibits D and E are copies of letters from the law offices of Nancy L. Isserlis to Progressive. Exhibit F is a copy of a disclaimer letter by Progressive. Exhibit G is a copy of a letter by Progressive in which Progressive acknowledges receipt of the summons and complaint filed with the Kings County Clerk under index number 34252/2007.

Plaintiff replies with an attorney's affirmation and three annexed exhibits labeled A through C. Exhibit A is a copy of an affidavit of Simon Gruzmark, a claims adjuster at Progressive. Exhibit B is a copy of an affidavit of Christine Somrak, an associate manager of claims support at Progressive. Exhibit C is a copy of a letter by progressive to Embethe.

LAW AND APPLICATION

CPLR Rule 3212(a) provides, in pertinent part, that any party may move for summary judgement in any action after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. Until 1996, the only time requirement for making a motion for summary judgment was that "issue has been joined" in the action. There was no outer limit until one was enacted in 1996. The moment of joinder of issue continues to be the earliest time for the making of a motion for summary judgment on the [*3]claim involved. If the motion is made against the plaintiff's cause of action, the service of the defendant's answer marks the joinder of issue; if its subject is a counterclaim, the service of the plaintiff's reply is the moment of joinder (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:12).

The requirement that issue be joined before a motion for summary judgment is granted "is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:11, p 431) and has been strictly adhered to (Perla v. Real Property Holdings, LLC., 23 Misc 3d 697 [NY Sup. 2009]). 1983]). It has also been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212(a); Union Turnpike Assoc., LLC v. Getty Realty Corp. 27 AD3d 725, 728 [2nd Dept., 2006]).

CPLR § 3212(b) provides in pertinent as follows: Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.

A motion made pursuant to CPLR § 3212 would require the annexing of pleadings under section 3212 (b). "The pleadings" means "a complete set of the pleadings" (Wider v. Heller, 24 AD3d 433, 805 NYS2d 130 [2nd Dept. 2006]) or "all the pleadings" (Welton v. Drobniki, 298 AD2d 757, 749 NYS2d 288 [3rd Dept. 2002]).

The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Matsyuk v. Konkalipos, 35 AD3d 675 [2nd Dept. 2006]; Wider v. Heller, 24 AD3d 433, 805 NYS2d 130 [2nd Dept. 2006]).

Progressive motion papers state that it seeks summary judgment against all named defendants and not merely against Thomas. The court make take judicial notice of its own records (See, Wachovia Bank, N.A. v. Otto N. Williams, 17 Misc 3d 1127(A) [NY Sup. 2007] citing Matter of Khatibi v. Weill, 8 AD3d 485 [2nd Dept. 2004]), and takes note of the following. By notice of motion filed on October 16, 2008, under motion sequence number one, Progressive moved pursuant to CPLR § 3215 for a default judgment against all defendants. On August 3, 2009, this court per Justice Miller issued an order which states, "A motion for default judgment having come before the court on 12-01-08 [under motion sequence number one], and marked granted-settle order on notice, is now marked abandoned, as no order was ever settled on the court as of today's date." The court take notice that since the filing of motion sequence number one, only defendant Thomas has apparently answered the instant complaint.

Progressive's motion papers include a copy of Thomas' answers to the complaint but does not include the answer of any other defendant. Progressive does not seek a default [*4]judgment against any defendant but rather seeks summary judgment pursuant to CPLR § 3212 against all defendants. Progressive, however, does not assert that any defendant is in default or that any defendant other than Thomas has answered the complaint. The requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Assuming that all defendant's answered the complaint and not just Thomas then the motion must be denied against Boatwright, Emethe, and Wiliams for failure to annex to the motion their respective answers to the complaint (See, Thompson v. Foreign Cars Center, Inc. Et al., 40 AD3d 965 [2nd Dept. 2007]). This denial, however, is without prejudice to renew (See, Greene v. Wood, 6 AD3d 976 [3rd Dept. 2004]).

Assuming, on the other hand, that only defendant Thomas answered the complaint, then summary judgment against Boatwright, Emethe, and Wiliams, must be denied as premature because Progressive has not joined with these defendants.

With regard to defendant Thomas, Progressive's complaint for a declaratory judgment does not plead an action for a declaratory judgment against him. The complaint only states a cause of action for a declaratory judgment against defendants Embethe and Williams. The court is therefore powerless to grant Progressive summary judgment against defendant Thomas (See, Milbrook Hunt v. Smith, 249 AD2d 283 [2nd Dept. 1998]).

Although defendant Thomas attempted to address the merits of Progressive's motion for summary judgment motion, Progressive's failure to plead an action against Thomas precludes an award of summary judgment against him without regard to the sufficiency of his opposing papers.

Consequently, Progressive's motion seeking summary judgment in its favor and against defendants Boatwright, Thomas, Embethe, and Williams in its action for a declaratory judgment is denied in its entirety.

The foregoing constitutes the decision and order of the court.

Enter x

J.S.C.