Metcalf v Progressive Ins.

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[*1] Metcalf v Progressive Ins. 2010 NY Slip Op 51997(U) [29 Misc 3d 1225(A)] Decided on November 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2010
Supreme Court, Kings County

John Glen Barry Metcalf, Sr., Plaintiff,

against

Progressive Insurance and Charles Worthington, Defendant.



346/10



Plaintiff John Glen Barry Metcalf, Sr.

Pro-se

Michael A. Zarkower, Esq.

Attorney for Defendant

Kaplan, Hanson, McCarthy, Adams

Fender & Fishbein

1 Executive Blvd., Suite 280

Yonkers, NY 10701

(914) 378-3900

Francois A. Rivera, J.



By notice of cross-motion filed on July 7, 2010, defendant Progressive Insurance (hereinafter "Progressive") moves under motion sequence number three for an accelerated judgment in its favor on the issue of liability and dismissal of the complaint pursuant to CPLR §§ 3212 and 3211. There is no opposition to the instant motion.

BACKGROUNDOn January 7, 2010, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. The complaint contains six allegations of fact in support of a single cause of action for damages due to personal injuries resulting from an automobile accident.

By Notice of Appearance and Verified Answer dated February 22, 2010, Progressive answered the complaint and asserted six affirmative defenses. The first is that the insurance policy at issue in this case was not in force at the time of the subject loss. The second is that plaintiff commenced this action in an improper venue. The third is that the complaint fails to [*2]state a cause of action. The fourth is that plaintiff failed to obtain jurisdiction over Progressive. The fifth is that plaintiff is barred from commencement of a direct suit against Progressive, which is an insurance carrier, by the New York Insurance Law without having first secured a judgment against the insured. The sixth is that any damages sustained by plaintiff were caused by the culpable conduct of plaintiff and not by the culpable conduct of Progressive. Progressive was served with an amended complaint dated March 6, 2010.

MOTION PAPERS

Progressive's motion papers consist of a notice of cross motion and attorney's affirmation annexed to which there are nine exhibits labeled A through I. Exhibit A purports to be a copy of the summons and complaint. Exhibit B is a copy of Progressive's answer to the complaint. Exhibit C is an unauthenticated copy of a document which purports to have been produced by police in Shreveport, LA. Exhibit D is a copy of an automobile insurance policy. Exhibit E is identified in the attorney's affirmation as being an "electronic application" for the insurance policy. Exhibit F purports to be a credit card tracking report. Exhibit G purports to be a copy of a second complaint served upon plaintiff in the instant action. Exhibit H is a copy of a preliminary conference order. Exhibit I is a series of copies of discovery demands made by Progressive.

LAW AND APPLICATION

CPLR §2214 [a] and [c] pertains to motion papers and provides in pertinent part as follows:

(a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.

(c) Furnishing papers to the court. Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved.

CPLR § 3025 (a) provides that a party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.

Plaintiff did not seek leave of the court to amend the complaint and Progressive did not state when the amended complaint was served. Progressive did not state any position regarding the two complaints or specify whether it is seeking dismissal of the original or the amended complaint. As a threshold issue, the court notes that an amended complaint, once served, supersedes the initial complaint and becomes the only complaint in the case as though the initial complaint was never served (see Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650 [2nd Dept. 2004] see also, Titus v. Titus, 275 AD2d 409, 410 [2nd Dept. 2000]). The court does not have enough information to determine whether the amended complaint is valid or a nullity. For the reasons explained below, Progressive's silence on these issues leaves the court to guess the relief that it seeks.

By failing to make clear the relief it seeks Progressive's motion papers are defect pursuant to CPLR § 2214[a]. Assuming that the amended complaint is a nullity and that the motion is directed at the original complaint, the motion must nevertheless be denied for the reasons sets forth below. [*3]

CPLR § 2214 [c] requires that the moving party furnish the court with all papers necessary to the consideration of the questions raised by the motion. A complete copy of the complaint is a document necessary to the consideration of the question of whether to dismiss the complaint pursuant to CPLR §3211. A complete copy of the complaint is also a document necessary to the consideration of the question of whether to grant a party an accelerated judgment pursuant to CPLR §§3211 and 3212.

Although Progressive has annexed to its notice of cross motion a document which purports to be a copy of the complaint, this document is incomplete. The court has taken judicial notice of the complaint which was filed with the Kings County Clerk's office (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]). The complaint filed with the Kings County Clerk's office contains annexed exhibits which are not included as a part of the partial copy of the complaint which Progressive has annexed to its motion.

The failure to include the complete complaint is contrary to the requirements of CPLR § 2214 [c] since it is an essential part of plaintiff's proof. Furthermore, in the absence of the complete complaint, Progressive can not meet its prima facie burden on its motion for summary judgment. Nor can Progressive demonstrate that the complaint must be dismissed pursuant to CPLR § 3211.

Assuming that the amended complaint is valid and Progressive's motion is directed to the amended complaint, the following problem arises. Progressive did not state whether it has answered the amended complaint. If Progressive has indeed joined issue, it has not annexed a copy of its answer to the instant motion. Therefore Progressive's motion for summary judgment pursuant to CPLR § 3212 must be denied either because it is premature (Union Turnpike Associates, LLC., v. Getty Realty Corp., 27 AD3d 725, 728 [2nd Dept. 2006]) or because it has failed to annex all the pleadings (Welton v Drobnicki, 298 AD2d 757 [3rd Dept. 2002]). Therefore, Progressive's motion for summary judgment pursuant to CPLR § 3212 must be denied without regard to the fact that its is unopposed (see Winegrad v. New York University Medical Center, 64 NY2d 851 at 853 [1985]). In light of the aforementioned ambiguities in Progressive's motion papers the court will not address dismissal of the amended complaint pursuant to CPLR § 3211.

Progressive's motion to dismiss the complaint is denied without prejudice.

The foregoing constitutes the decision and order of the court.

Enter:

J.S.C.

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