Matter of State Farm Mut. Auto. Ins. Co. v Patton
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Matter of State Farm Mut. Auto. Ins. Co. v Patton 2011 NY Slip Op 32110(U) July 28, 2011 Sup Ct, NY County Docket Number: 111897/10 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 81212011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY BARBARA JAFFE / J s e. PART Index Number : 1I I89712010 STATE FARM MUTUAL AUTOMOBILE INDEX VS PATTON, BRIAN S. NO. MOTION DATE Sequence Number : 002 002 MOTION SEQ. NO. RESTORE ACTION TO CALENDAR I nn I MOTION CAL. NO. * F C ; I The following papers, numbered 1 to were read on this motion tolfor W Vme PAPER$ NUMBEAED Notice of Motion/ Order to Show Cause - Affldavlts - Exhibits Replylng Affldavits 0 Yes I 4.? Ll $ 5 Answering Affidavits - Exhibits Cross-Motion: ... d o FILED Upon the foregolng papers, it is ordered that thls motion AUG 0 2 2011 Dated: 7 i)-vi 1 1 ,JUL 2 8 2011 hB Q JAFFE J.S.C. 0 FINAL DISPOSITION &AFiNA L hf60s ITI o N Check if appropriate: 0 DO NOT POST REFERENCE 0 SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. Check one: [* 2] In the Matter of the Petition of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, 111897/10 Index No. Motion Date: Motion Seq. No.: Motion Cal. No.: 512411 1 002 100 DECISION & ORDER -against- For an Order staying the arbitration attempted to be had by FILED BRIAN S. PATTON, AUG Respondent 022011 NEW YORK COUNTY CLERK'S OFFlCE -andFRIENDLY EXPRESS TRUCKING INC., ASHRAF S. ALAWANDA and PROFORMANCE INSURANCE COMPANY Proposed Additional Respondents. For petitioner: Richard Halpern, Esq. Richart T. Lau & Associates P.O. Box 9040 Jericho, NY 1 1753-9040 5 16-229-6000 For Patton: Jennifer L. Bailhe, Esq. Proner & Proner 60 E. 42"dStreet, Suite 1448 New York, NY 10165 2 12-986-3030 For Proformance: Kenneth T. Bierman, Esq. Callan, Koster, Brady & Brennan, LLP One Whitehall Street New York, NY 10004 212-248-8800 By notice of motion dated February 23,20 11, petitioner moves pursuant to CPLR 222 1 for an order vacating an order of this court dated January 26, 201 1, restoring this matter to the court's active trial calendar, temporarily staying the demanded arbitration, adding all proposed additional respondents as parties herein, and setting this matter down for a framed issue hearing. [* 3] Respondent and proposed additional respondent Proformance Insurance Company oppose. I. BACKGROUND On an unknown date before October 2, 2008, petitioner issued an automobile insurance policy to respondent, which was effective from September 7, 2008 to September 7, 2009. (Affirmation of Richard Halpern, Esq., dated Feb. 23, 201 1 [Halpern Aff.], Exh. B). This policy contained the Supplemental UninsuredLJnderinsured Motorists Endorsement-New York, which provides that Patton may obtain uninsured motorist benefits only if the offending vehicle did not have insurance when the accident occurred. (Id,Exh. K). On October 2,2008, respondent was involved in an automobile accident in Manhattan with another vehicle owned and driven by proposed additional respondents Friendly Express Trucking, Inc. and Ashraf S. Alawanda, respectively. (Id., Exh. A). On August 17,20 10, respondent served petitioner with a demand for arbitration, seeking uninsured motorist benefits pursuant to his automobile insurance policy. (Id., Exh. B). By notice of petition dated September 8,20 10, petitioner moved pursuant to CPLR 7503(c) for an order staying arbitration, relying on a police report and documents from the New Jersey Motor Vehicles Commission (NJMVC) showing that Friendly s vehicle was insured when the accident occurred. ( I d , Exh. C). More specifically, the police report reflects that Friendly s vehicle was insured by policy P600784 issued by an unidentified insurer set to expire April 28, 2009, and the NJMVC documents show that the vehicle was registered with proof of Proformance insurance policy 39800 1944 before the accident. (Id.). Originally returnable October 12, 2010, the petition was adjourned to October 26,2010, then to November 16,2010, and finally to January 18, 201 1. (Id., Exh. G). 2 [* 4] Proformance served an affirmation in opposition dated November 8, 20 10, claiming that the policy it issued to Friendly had been cancelled before the accident. ( I d , Exh. D). In so arguing, it relied on a notice of cancellation of policy 398001944, which was mailed on January 11,2008 and provides that cancellation will take effect at 12:Ol a.m. on February 14, 2008. ( I d ) . In a reply affirmation dated November 15,2010, petitioner argued that the Proformance s notice of cancellation was ineffective for non-compliance with sections 17:29C-9 and 17:29C-l0 of the New Jersey Statutes. (Id., Exh. E). By affrmation in opposition dated November 8,2010, Patton requested that the matter be temporarily stayed pending a framed issue hearing on whether the policy was properly cancelled. ( I d , Exh. F). On January 18,2011, petitioner failed to appear for oral argument, and, accordingly, by order dated January 26, 201 1, I denied the petition. (Id). By affidavit dated February 17,2010, Barbara Brooks, legal secretary for petitioner s counsel, states that she manages the office s calendar of petitions to stay arbitration, that she understood New York County to be submissions-only such that oral argument is not required unless the court notifies parties otherwise, that she assumed there was no oral argument scheduled in this matter because she did not receive such notification and the E-Law printout on whch she relied referred to the Submissions Part, and that she first realized there had been oral argument when she obtained the January 26,201 1 order. ( I d , Exh. r). By affidavit dated February 17,2010, Rory Stecker, the claims representative assigned to respondent s claim, states that an uninsured motorist claim pursuant to his policy is valid only if the offending vehicle was not insured at the time of the accident, that NJMVC documents reflect 3 [* 5] that Friendly s vehicle was registered with Proformance insurance before the accident, and that Proformance violated sections 17:29C-9 and 17:29C-10 of the New Jersey Statutes by neither providing Friendly with 60 days advanced notice of cancellation nor offering a copy of the notice of cancellation certified contemporaneously with the original. (Id., Exh. J). m N T I O N S Petitioner contends that it has a reasonable excuse for its failure to appear at oral argument, as Brooks mistakenly believed that she would receive notification from the court had it been scheduled. (Halpem Aff.). Relying on Stecker s affidavit of merit, it also asserts that its defense to Patton s claim is meritorious, as its policy only provides uninsured motorist benefits where the offending vehicle is uninsured, documents from the NJMVC show that Friendly s vehicle was registered with proof of insurance by Proformance before the accident, and Proformance s notice of cancellation was void for failwe to comply with N.J.S.A. 50 17:29C-9 and -10, (Id,). In opposition, Profommce claims that petitioner does not have a meritorious cause of action and has not provided a reasonable excuse for its failure to appear at oral argument. (Affirmation of Kenneth T. Bierman, Esq. in Opposition, dated March 16, 201 1). In opposition, Patton adopts Proformance s arguments and seeks a framed issue hearing be scheduled in the event that petitioner s default is vacated. (Affirmation of Jennifer L. Bailine, Esq. in Opposition, dated March 16,201 1). In reply, petitioner maintains that Proformance s notice of cancellation does not comply with New Jersey law, as it was mailed less than 60 days before cancellation was to occur, and the copy Proformance offers contains no contemporaneous certification. (Affirmation of Richard 4 [* 6] Halpern, Esq. in Reply, dated March 21,201 1). It also asserts that Brooks s failure to calendar the matter for oral argument constitutes a reasonable excuse for its default, as its counsel s default was not intentional. (Affirmation of Richard Halpern, Esq. in Reply, dated March 24, 201 1). UI, ANALYSIS A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. ) (CPLR 2221 [d][2]). In contrast, a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination[, and] shall contain a reasonable justification for the failure to present such facts on the prior motion. (CPLR 2221 [eJ[2], [3]). Pursuant to CPLR 2221(f), a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. Pursuant to CPLR 5015(a)(l), in order to restore a dismissed action, the moving party must demonstrate both a reasonable excuse for its default and a meritorious cause of action. (Cato v Cily ofNew York,70 AD3d 471 [lst Dept 20101; Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [lst Dept 20031). A. Re-ble excuse Law office failure may constitute a reasonable excuse for default (CPLR ZOOS), as long as it was neither willful nor deliberate (Chelli v Kelly Group, P.C., 63 AD3d 632 [ lStDept 20091; Franco Belli Plumbing & Heating & Sons, Inc. v Imperial Dev. & Constr. Corp., 45 AD3d 634 5 [* 7] [2d Dept 200711, and the party seeking to vacate a default on this ground must provide facts to explain and justify the default (Ogunmoyin v 1515 Broadway Fee Owner, LLC, 85 AD3d 991 [2d f Dept 201 11; Mutter o Esposito v Esposito, 57 AD3d 894 [2d Dept 20081). Here, petitioner s explanation for its failure to appear at oral argument reflects that it was reasonable and neither willful nor deliberate. (See Shanker v 119 E. 3Uh,Ltd., 63 AD3d 553 [lst Dept 20091 [defendant s failure to appear at oral argument reasonably explained by its attorney s confusion as to court s calendaring practices]; Perez v New York Ct Hous. Auth., 290 AD2d iy 265 [IBt Dept 20021 [counsel s misunderstanding as to scheduled time for appearance constituted reasonable excuse for default where calendar tracking system did not alert him of appearance]; see also Rugieri v Bannister,22 AD3d 299 [Ist Dept 20051, afldas mod 7 NY3d 742 [2006] [where attorney failed to appear for oral argument, reasonable excuse found, as he submitted affirmation stating that he arrived late to and missed oral argument due to an unanticipated scheduling overlap and parking receipt stamped within minutes of his required appearance and described attempts to communicate with adversary regarding scheduling]). vit of merit A party seeking to vacate default must submit an affidavit of merit from someone with personal knowledge of the facts underlying the claim (Rugieri, 22 AD3d at 305; Katz v Robinson Silverman Pearce Aronsohn & Berman, LLP, 277 AD2d 70, 74 [lBt Dept 20001; City of New York v Elghanayun, 214 AD2d 329 [ lSt Dept 19955) set[tingJ forth facts sufficient to make out a prima facie showing o f a meritorious defense (Aerovias De Mexico, S.A. v Malerba, 265 AD2d 214,215 [l Dept 19991). The party need not prove its defense. (Id.). Petitioner s defense as to the effectiveness of Proformame s notice of cancellation is 6 [* 8] grounded in sections 17:29C-9 and 17:29C-10, which provide, inter alia, that an insurer must give an insured 60 days advanced notice of its intention not to renew and that a written notice of cancellation is only effective if the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy. New Jersey courts have interpreted true copy to mean a copy certified LLcontemporaneously preparation and mailing of the original. (Celino v Gen. with Accident Ins., 21 1 NJ Super 538,512 AD2d 496 [App Div 19861). Here, Stecker s affidavit of merit offers facts related to petitioner s insurance policy, NJMVC documents showing that the Friendly vehicle was registered with Proformance insurance before the accident, and Proformance s failure to provide adequate notice or a true copy of the notice of cancellation. As these facts demonstrate aprima facie defense under sections 17:29C-9 and 17:29C-10, and as Stecker possesses personal knowledge of Patton s claim by virtue of being the claims representative assigned to it, petitioner s aflidavit of merit is sufficient. D, Joinder and f r a e c l i s ~ As the effectiveness of Proformance s notice of cancellation may not be determined on the papers, Alawanda and Friendly are joined as respondents and a framed issue hearing is directed. (See Matter of Victoria Select Ins. Co. v Munar, 80 AD3d 707 [2d Dept 201 13 [in petition to stay arbitration of uninsured motorist benefits where parties submitted documents raising issues of fact as to cancellation of policy, joinder of proposed additional respondents as necessary parties for framed issue hearing proper]; Mutter of N. Y Cent. Mut. Ins. v Davalos, 39 AD3d 654 [2d Dept 20071 [same]; Matter of N Y Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629 [2d Dept 20041 [same]). 7 [* 9] IV. CONCLU$ION Accordingly, it is hereby ORDERED, that State Farm Mutual Automobile Insurance Company's motion to vacate this court's January 26,201 lorder is granted; and it is further ORDERED, that State Farm Mutual Automobile Insurance Company's motion to join proposed additional respondents as parties to this action is granted; and it is further ORDERED, that the arbitration in this matter is temporarily stayed pending a framed issue hearing; and it is further ORDERED, that, within 60 days from the date of this order, State Farm Mutual Automobile Insurance Company shall file with the Clerk of the Trial Support Ofice (Room 158) a copy of this order with notice of entry, a note of issue, and a statement of readiness, and shall pay the appropriate fees, if any; and it is further ORDERED, that the parties must mutually contact the court to schedule same. ENTER: 3 A -% I DATED: July 28,201 1 New York, New York 3UL 2 8 2 m NEW YORK COUNTY CLERK'S OFFICE 8 4
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