Amica Mut. Ins. Co. v Prunitis

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Amica Mut. Ins. Co. v Prunitis 2017 NY Slip Op 33479(U) January 9, 2017 Supreme Court, Suffolk County Docket Number: Index No. 607023-2015 Judge: Peter H. Mayer 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. INDEX NO. 607023/2015 FILED: SUFFOLK COUNTY CLERK 01/27/2017 11:48 AM NYSCEF DOC. NO. 20 SHORT FORM ORDER RECEIVED NYSCEF: 01/27/2017 INDEX NO. 607023-2015 SUPREME COURT- STATE OF NEW YORK I.A.S. PART 17 - SUFFOLK COUNTY PRE SEN'{: Hon. PETER H. MA YER Justice of the Supreme Court - - - - -------,--- MOTION DATE 1-14-16 ADJ. DATE 3-8-16 Mot. Seq.# 001 - MotD ·---------------X AMICA MUTUAL INSURANCE COMPANY, Plaintiff(s), - against - Monteiro & Fishman LLP Attorneys for Plaintiff 91 N. Franklin Street, Suite 108 Hempstead, New York 11550 Andrea & Towsky, Esq. Attorneys for Deft Andrew P. Prunitis 320 Old Country Road, Suite 202 Garden City, New York 11530 ANDREW P. PRUNITIS, GREGORY W. PRUNITIS, KRISTINA H. PRUNITIS and ROBERT A. SC(\.RETTA, Defendant(s). ·------------------------------------X Upon the reading and filing of the following papers in this matter: (I) Notice of Motion by the plaintiff, dated November 30, 2015; and supporting papers, including Memorandum of Law; (2) Affinnation in Opposition by the defendant Andrew P. Prunitis, dated February 22, 2015, and supporting papers; and now UPON 9UE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDER]!D that the branch of plaintiffs motion (001), which seeks an order granting plaintiff summary judgmrnt against defendant Andrew P. Prunitis pursuant to CPLR 3212, is hereby granted as against said defendant; and it is further I ORDERED that the branch of the plaintiffs motion (00 I), which seeks a default judgment against defendants Greg9ry W. Prunitis, Kristina H. Prunitis and Robert A. Scaretta pursuant to CPLR 3215, is hereby denied, without prejudice and with leave to resubmit, for the reasons set forth herein; and it is further I ORDERED that plaintiffs counsel shall promptly provide a copy of this Order via First Class Mail upon all parties in this action and in the underlying Suffolk County personal injury action (Scaretta v [* 1] 1 of 4 INDEX NO. 607023/2015 FILED: SUFFOLK COUNTY CLERK 01/27/2017 11:48 AM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/27/2017 Amica Mutual Insurance Co v Prunitis Index No. 607023-2015 Page2 Prunitis, Index Nii 11220-20 I 3), or their attorneys ifrepresented by counsel, and shall promptly thereafter file the affidavits of such service with the Suffolk County Clerk. 1 This declaratory judgment action arises from an incident in which Andrew P. Prunitis ("Prunitis") assaulted Robert A. Scaretta ("Scaretta") outside Scaretta's home on September 27, 2012. The record indicates that on· that date, Prunitis had an argument on the phone with his estranged wife, Krystal. Thereafter, Prunitis drove to Scaretta's home to confront Krystal and Scaretta who were dating at the time. Once there, Prunitis physically assaulted Scaretta, knocking him to the ground, then punching and kicking him repeatedly in the face and body. While Prunitis continued to hit Scaretta, Prunitis was screaming, "do you like f--king my wife" and "I'm going to kill you." Prunitis was arrested hours after the incident and charged with Assault in the Third Degree and Harassment in the Second Degree. He ultimately pied guilty to Assault in the Third Degree. 1 At the time of the incident, Prunitis allegedly lived with his parents, Gregory W. Prunitis and Kristina H. Prunitis, who were named insureds under a homeowners policy of insurance with Amica ("Amica Policy"). As a result of his alleged injuries, Scaretta commenced a personal injury action against Prunitis, captioned Robert A. Scaretta v Andrew Prunitis, under Suffolk County Index No 11220-2013 ("underlying action"). Prunitis seeks indemnification under his parents' Amica Policy for the injuries allegedly inflicte~ by Prunitis upon Scaretta during the Assault. Amica seeks a declaration that Prunitis is precluded from coverage under the policy on the grounds that the incident is not a covered "occurrence" under the Policy, and because Prunitis failed to provide timely notice of the incident to Amica, which first learned of the intident when Prunitis served Amica with the underlying lawsuit papers in or about May 2013, approximately eight (8) months after it occurred. ' In relevant part, CPLR 3212(b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter oflaw in directing judgment in favor of any party." Summary judgment for the insurer is appropriate in a declaratory judgment action when an insured who possesses contemporaneous knowledge of the incident for which coverage is sought but, without a valid excuse, fails to notify the carrier of the incident 1.mtil several months later by forwarding a copy of the summons and complaint in the underlying personal injury action (see Lukralle v. Durso Supermarkets, 238 AD2d 318, 656 NYS2d 292 [2d Dept 1997]), Notice of an incident, which must be provided within a reasonable time under all the circumstances, is a condition to the carrier's liability and absent a valid excuse, the failure to satisfy the notice requiremep.t vitiates the policy (id). It is well settled that insurance policy terms constitute a material condition precedent to the insurer's liability and that ifthere is no excusable noncompliance by the insured, the policy is vitipted (see Security Mutual Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 340 NYS2d 902 [1972]; American Home Assur. Co. v Transamerica Ins. Co., 90 NY2d 433,661 NYS2d 584 (1997]). A disclaitner pursuant to Insurance Law§ 3420(d) is required when the denial of coverage is based upon a policy e":clusion without which the claim would be covered; however, a disclaimer pursuant to Insurance Law § 3420(d) is unnecessary when a claim falls outside the scope of the policy's coverage portion (see Cias_ullo v Nationwide Ins. Co., 32 AD3d 889,823 NYS2d 85 [2d Dept 2006], citing Worcester Ins. Co. v Bettenhauser, 95 NY2d 185 (2000]; Handelsman v Sea Ins. Co., 85 NY2d 96 (1994]; Zappone vHomeins. Co.,55NY2d 131, (1982]). [* 2] 2 of 4 INDEX NO. 607023/2015 FILED: SUFFOLK COUNTY CLERK 01/27/2017 11:48 AM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/27/2017 Amica Mutual Insurance Co v Prunitis Index No. 607023-WI 5 Page3 In opposition to Amica's motion, plaintiffs submit an affirmation from counsel, but no affidavit from a party plaintiff. An affirmation of a party's attorney submitted in support of or_opposition to a mo~i~n, and which is without actual knowledge of the facts, is without evidentiary value and 1s, therefore, unavailmg on the issues prdented to the Court (see Zuckerman v City ofNew York, 49 NY2d 557,427 NYS2d 595 [1980]; Browne v Castillo, 288 AD2d 415, 733 NYS2d 494 [2d Dept 2001]; Dicupe v City ofNew York, 124 AD2d 542, 5'o7NYS2d 687 [2d Dept 1986]; Farina v Pan American World Airlines, Inc., 116 AD2d 618, 497 NYS2d 706 [2d Dept 1986]). In any event, Amica' s motion papers establish that Prunitis's September 27, 2012 assault ofScaretta, for which Prunitls seeks indemnification, is not a covered "occurrence" under the Amica Policy. Even if the incident could have constituted a covered occurrence, Prunitis failed to provide timely notice of the incident to Amica. Therefore, Amica has made a prima facie showing of entitlement to summary judgment as a matter oflaw. Prunitis's opposition fails to rebut that showing. Counsel's contention that summary judgment should pe denied because discovery is not complete is unavailing on this record. To speculate that something might'be caught on a fishing expedition provides no basis pursuant to CPLR 3212(f) to postpone a decision on the summary judgment motion (see Gateway State Bank v Shangri-La Private Club For Women, Inc., 113 AD2d 791,493 NYS2d 226 [2d Dept 1985], affd, 67 NY2d 627,499 NYS2d 679 [l 986]). Furthermore, the; mere hope that further discovery would reveal the existence of triable issues of fact is insufficient to delay determination of a motion for summary judgment (Shectman v Wilson, 68 AD3d 848, 890 NYS2d l l 7,l[2d Dept 2009]; Giraldo v Morrisey, 63 AD3d 784, 880 NYS2d 512 [2d Dept 2009]). Based upon the foregoing, the branch of Amica's motion for an order granting summary judgment as against Andr6w P. Prunitis is granted. The branch of the motion, however, which seeks a default judgment against defendants Gregory W. Prunitis, Kristina H. Prunitis and Robert A. Scaretta pursuant to CPLR 3215, is hereby denied without prejudice and with leave to resubmit for failure to comply with 50 USCS Appx §5fl(b). Title 50 USCS Appx §521, which applies in state courts, was enacted for the "protection of service members against default judgments." Pursuant to 50 USCS Appx §52l(a), this section "applies to any civil action or proceeding in which the defendant does not make an appearance" (emphasis supplied). Under 50 USCS Appx §52l(b)(l), "the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service" (emphasis added). Under §52l(b)(4), "[t]he requirement for an affidavit under paragraph (I) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury." Here, there is no showing in plaintiffs affidavits of service as to the· military status of defendants Gregory W. Pruriitis, Kristina H. Prunitis and Robert A. Scaretta, nor does plaintiff submit any other proof of said defendants' military status. Therefore, pursuant to 50 USCS Appx §521(b), a judgment of default may not be entered against those defendants. [* 3] 3 of 4 INDEX NO. 607023/2015 FILED: SUFFOLK COUNTY CLERK 01/27/2017 11:48 AM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/27/2017 Amica Mutual Insurance Co v Prunitis Index No. 607023-2015 Page4 I I This constjtutes the Order and Judgment of the Court. I Dated: I January ,9, 2017 i l [* 4] I [ X ] NON FINAL DISPOSITION FINAL DISPpsmoN 4 of 4

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