American Country Ins. Co. v Umude

[*1] American Country Ins. Co. v Umude 2017 NY Slip Op 50872(U) Decided on June 29, 2017 Supreme Court, Bronx County Barbato, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2017
Supreme Court, Bronx County

American Country Insurance Company, Plaintiff(s),

against

Mark Umude, ANTHONY HERNANDEZ, ANTHONY RODRIGUEZ, AURORITA GARCIA, ANGEL GOMEZ, CAESAR TORRES, CHARLES ANAYA, JR., EVITA ALERS AND MARTHA GARCIA, Defendant(s).



26031/14



Plaintiff's Counsel: Shearer PC

Counsel for Defendants ANTHONY RODRIGUEZ, ANGEL GOMEZ, CAESAR TORRES, CHARLES ANAYA, JR., EVITA ALERS and MARTHA GARCIA: Celino & Barnes PC

Counsel for AURORITA GARCIA: Powell & Roman LLC
Ben Barbato, J.

In this action for a declaratory judgment, plaintiff moves seeking an order granting reargument of this Court's Decision and Order dated December 29, 2016, which denied plaintiff's motion seeking a default judgment and summary judgment. Plaintiff avers that in denying its motion on grounds that plaintiff failed to timely disclaim coverage, the Court misapplied prevailing law. Defendants ANTHONY RODRIGUEZ (Rodriguez), ANGEL GOMEZ (Gomez), CAESAR TORRES (Torres), CHARLES ANAYA (Anaya), EVITA ALERS (Alers), and MARTHA GARCIA (Garcia) oppose plaintiff's motion, asserting that the Court neither misapprehend the facts nor misapplied the law when it held that plaintiff failed to timely disclaim coverage for the accident in which the foregoing defendants were involved.

For the reasons that follow hereinafter, plaintiff's motion is granted.

The instant action is for declaratory judgment. The complaint alleges the following: On April 25, 2014, defendant MARK UMUDE (Mark), while operating a 2013 Cadillac Escalade owned by nonparty Amoghene Umude (Amoghene), was involved in an accident. At the time, the remaining defendants were passengers in the foregoing vehicle. Prior to the foregoing accident, plaintiff issued an insurance policy to Amoghene, which policy did not cover any accidents arising while the foregoing vehicle was being operated without Amoghene's permission. As a result of the foregoing accident and premised on a claims for personal injuries, defendants commenced three separate lawsuits naming Mark and Amoghene as defendants. The first brought by Alers, [*2]Anaya, Garcia, Gomez and Torres in New York County, bearing Index No. 22933/14, the second brought by Rodriguez and defendant ANTHONY HERNANDEZ (Hernandez) in Bronx County, bearing Index No. 304843/14, and the third brought by Rodriguez in Bronx County and bearing Index No. 25233/14. Plaintiff alleges that because coverage under the policy was premised on permissive use of the vehicle involved in the accident and no such permission was given to Mark, it is entitled to a declaratory judgment declaring that the policy issued to Amoghene does not cover the accident herein. Moreover, plaintiff alleges that insofar as the law premises liability for a non-operating owner of motor vehicle involved in an accident only if the operator of such vehicle had permission to operate the same, plaintiff seeks declaration that Amoghene is not liable to defendants for the accident alleged.

Motion to Reargue

Plaintiff's motion seeking reargument of this Court's Decision and Order dated December 20, 2016 is hereby granted. A review of this Court's decision reveals that in holding that plaintiff was required to issue a timely disclaimer in order to prevail, it misapplied controlling law. As will be discussed below, under the circumstances alleged and on this record, there is no question that (1) Mark was operating the instant vehicle without Amoghene's permission such that the policy did not provide coverage for the instant accident; and (2) that based on the foregoing, pursuant to VTL § 388, Amoghene cannot be vicariously liable for the instant accident.

CPLR § 2221(d)(1), authorizes the reargument of a prior decision on the merits and states that such motion

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.

Accordingly, a] motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided

(Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]; see also, Fosdick v Town of Hemstead, 126 NY 651, 652 [1891]; Vaughn v Veolia Transp., Inc., 117 AD3d 939, 939 [2d Dept 2014]). Thus, because reargument is not a vehicle by which a party can get a second bite at the same apple, a motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original motion (Foley at 567).

A motion to reargue, must be made within 30 days after service of a copy of the underlying order with notice of entry (CPLR § 2221[d][3]; Perez v Davis, 8 AD3d 1086, 1087 [4th Dept 2004]; Pearson v Goord, 290 AD2d 910, 910 [3rd Dept 2002]).

Here, as will be discussed hereinafter, based on controlling law and the evidence presented with plaintiff's prior motion, plaintiff did not have to timely disclaim. As such, having demonstrated the merits of their causes of action via an affidavit and that Mark and Hernandez were served with process and have failed to appear, plaintiff's motion for a default judgment pursuant to CPLR § 3215(f) should have been granted. Similarly, with the tender of the relevant insurance policy conditioning coverage upon permissive use and clear evidence that in operating Amoghene's vehicle, Mark did so without permission, the Court should have granted plaintiff's motion for summary judgment. Thus the Court erred and reargument is warranted.

Motion for Summary Judgment

Plaintiff's motion seeking summary judgment and, thus, declaration that the policy it issued to Amoghene does not cover the accident and that Amoghene is not vicariously liable for the same is granted. The evidence submitted establishes that the policy issued by plaintiff condition coverage on permissive use of the covered vehicle and that at the time of the accident Mark did not have Amoghene's permission to use the vehicle. Thus, plaintiff establishes that this accident was never covered by the policy such that plaintiff was not required to timely disclaim coverage and that pursuant to well settled law, Amoghene cannot be vicariously liable to the defendants, which with the exception of Mark, were passengers in the instant vehicle and who have sued Amoghene.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).

The Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). [*3]Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

While the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. Notably,

t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

(Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, the opponent on a motion for summary judgment can have the court consider inadmissible evidence provided he tenders an excuse for failing to submit it in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]. Alternatively, the court can consider inadmissible evidence tendered in opposition to a motion for summary judgment if the inadmissable evidence would otherwise be admissible at trial upon a proper foundation and raises questions of fact sufficient to defeat the motion (Phillips v Joseph Kantor & Company, 31 NY2d 307, 310 [1972]; Buckley v J.A. Jones/GMO, 38 AD3d 461, 462-463 [1st Dept 2007]; Levbarg v City of New York, 282 AD2d 239, 241 [1st Dept 2001]; Eitner v 119 West 71st Street Owners Corp., 253 AD2d 641, 642 [1st Dept 1998]).

In support of the instant motion, plaintiff submits three complaints. The first is in a case titled Alers, et al. v Umude, et al., Index No. 22953/14E, wherein Alers, Anaya, Garcia, Gomez, and Torres sue Amoghene and Mark for personal injuries sustained on April 25, 2014. It is alleged therein that the foregoing plaintiffs sustained injuries while a passenger within a 2013 Cadillac owned by Amoghene and operated by Mark. It is alleged that the foregoing injuries were sustained in an accident caused [*4]by Mark's negligence in the operation of the instant vehicle. The second complaint is in a case titled Hernandez, et al. v Umude, et al., Index No. 304843/14 and the third in a case titled Rodriguez v Umude, et al., Index No. 25233/14E. In both of the foregoing cases plaintiffs sue Amoghene and Mark for the very same reasons and for the very same accident alleged in the first case discussed above.

Plaintiff submits the policy it issued to Amoghene. The policy list Amoghene as the insured and his 2013 Cadillac Escalade as the covered auto. Subsection A of Section II of the policy, tiled Liability Coverage states

w]e will pay all sums an 'Insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto.'

The foregoing subsection defines an "Insured" as Amoghene "for any covered 'auto,'" and "[a]nyone else while using with your permission a covered 'auto.'

Plaintiff submits a police report which indicated that on July 5, 2014, Amoghene walked into the 45th Precinct and reported that on April 25, 2014, after spending the night at his mother's house, where his brother Mark also resides, he received a telephone call from a detective notifying him that his brother had been involved in an accident and was at the hospital. Upon reporting to the hospital, Amoghene told the detective that he had not given Mark permission to use his vehicle, which Amoghene he used as a limousine. The report indicates that Mark was charged with Unauthorized Use of Motor Vehicle in the First Degree [FN1] (Penal Law § 165.08). Plaintiff also submits a 42 count indictment dated October 28, 2014, which indicates that among a legion of other charges, Mark was indicted for the crime of Unauthorized Use of a Vehicle in the Third Degree. The foregoing charge alleges that on April 25, 2014, Mark operated a vehicle without the cosent of the owner.

Plaintiff also submits the transcript of Amoghene's examination under oath wherein he testified, in pertinent part, [*5]as follows: On April 23, 2014, Amoghene owned a 2013 Cadillac Escalade, which he used as a limousine. Late that night he went to his mother's home in the Bronx where he spent the night. While Amoghene lived in Valley Cottage, NY, he was supposed to drive someone to the airport early the next day and, thus, he decided to stay with his mother who lived with his brother Mark. Before going to sleep, he parked his vehicle outside his mother's home and placed the only keys in his suit pocket. He then went to sleep. Upon waking, he received a call from Officer Murphy informing him that his brother Mark had been in an accident and that he should report to the hospital. He then noticed that his car keys were not in his pocket and upon exiting his mother's home noticed that his SUV was not there. Fearing that Mark had taken his vehicle and wrecked it, he reported to the hospital. Thereat, he learned that Mark had been involved in an accident involving multiple passengers. He had not given Mark permission to use his vehicle and conveyed the same to Officer Murphy. He was also told that he should file a police report.

Insurance Coverage

Plaintiff establishes entitlement to summary judgment on its cause of action for declaratory judgment which seeks to have the Court declare that the instant accident does not fall within the ambit of the coverage under the insurance policy it issued to Amoghene. Significantly, the instant policy did not cover the instant accident because Mark, operating the covered vehicle without permission, was not an insured under the policy.

It has long been held that absent a violation of law or some transgression of public policy people are free to enter into contracts, making whatever agreement they wish no matter how unwise they may seem to others (Rowe v Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62, 67-68 [1978]). Consequently, when a contract dispute arises, it is the court's role to enforce the agreement rather than reform it (Grace v Nappa, 46 NY2d 560, 565 [1979]). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). It is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" (Vermont Teddy Bear Co., Inc. v 583 Madison Realty Company, 1 NY3d 470, 475 [2004] [internal quotation marks omitted]) Moreover, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of [*6]those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach serves to preserve "stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory" (Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995] [internal quotation marks omitted]).

In addition to the foregoing, it is also well settled that all material terms in a contract be given full meaning and effect (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; Excess Ins. Co. Ltd. v Factory Mut. Ins. Co., 3 NY3d 577, 582 [2004]), that a contract be "read as a whole . . . every part . . interpreted with reference to the whole . . . [so] as to give effect to its general purpose" (Beal Sav. Bank at 324—25; Westmoreland Coal Co. at 358), and that a contract ought to not be interpreted in a way which renders any portion meaningless (Beal Sav. Bank at 324—25; God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374 [2006]).

Provided a writing is clear and complete, evidence outside its four corners "as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" (W.W.W. Assoc., Inc. v Giancontieri, 77 NY2d 157, 162 [1990]; see Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]; Mercury Bay Boating Club Inc. v San Diego Yacht Club, 76 NY2d 256, 269-70 [1990]; Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 822 [1984]). Whether a contract is ambiguous is a matter of law for the court to decide (id. at 162; Greenfield at 169; Van Wagner Adv. Corp. v S & M Enterprises, 67 NY2d 186, 191 [1986]). A contract is unambiguous if the language it uses has "definite and precise meaning, unattended by danger of misconception in purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield at 569; see Breed v Ins. Co. of N. Am., 46 NY2d 351, 355 [1978]). Hence if the contract is not reasonably susceptible to multiple meanings, it is unambiguous and the court is not free to alter it, even if such alteration reflects personal notions of fairness and equity (id. at 569-70). Notably, it is well settled that silence, or the omission of terms within a contract are not tantamount to ambiguity (id. at 573; Reiss v Financial Performance Corp., 97 NY2d 195, 199 ([2001]). Instead, the question of whether an ambiguity exists must be determined from the face of an agreement without regard to extrinsic evidence (id. at 569-570), and an unambiguous contract or a provision contained therein should be given its plain and ordinary meaning (Rosalie Estates, Inc. v RCO International, Inc., 227 AD2d 335, 336 [1st Dept 1996]).

The foregoing principles are equally applicable to insurance [*7]policies (Loblaw, Inc. v Employers' Liab. Assur. Corp., 57 NY2d 872, 876 [1982] [Fuchsberg, J., concurring]; State of New York v American Manufactures Mutual Insurance Company, 188 AD2d 152, 154 [3d Dept 1993]). Thus in determining coverage, the court must determine the rights and obligations under the policy using the specific language of the policy itself (Sanabria v American Home Assurance Company, 68 NY2d 866, 868 [1986]; State of New York v Home Indemnity Company, 66 NY2d 669, 671 [1985]; Stasack v Capital District Physicians' Health Plan, Inc., 290 AD2d 866, 866 [3d Dept 2002]), ascribing to such language "the common sense and common speech of the average person" (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32—33 [1st Dept 1979], affd sub nom). Significantly, an insurance policy should be construed in a way "that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect." (Raymond Corporation v National Union Fire Insurance Com-any of Pittsburgh, PA., 5 NY3d 157, 162 [2005]).

When the language in an insurance policy is clear and unambiguous, the interpretation of the policy and determination of the rights an obligations of the parties is a question of law to be adjudicated by the court (Kenyon v Knights Templar and Masonic Mutual Aid Association, 122 NY 247, 254 [1890]; Stainless, Inc. at 34; Stasack at 867 ["On this record, we find the insurance contract provisions are sufficiently clear and unambiguous and the controlling facts are adequately before us to declare that defendant has no contractual obligation to pay for plaintiff's surgery."]). However, when the language in the policy is ambiguous, such that the intent of the parties turns on extrinsic evidence, the credibility of which is at issue, the rights and obligations under the policy is a question of fact for the jury (State of New York, 66 NY2d 669, 671; Hartford Accident & Indemnity Company v Wesolowski, 33 NY2d 169, 172 [1973]; Stainless, Inc. at 32). Notably, however, when the extrinsic necessary to resolve an ambiguity in the policy is itself conclusory, failing to equivocally resolve the ambiguity in the a policy, interpretation of the policy remains a question of law for the court to decide; deciding any ambiguities against the insurer (State of New York, 66 NY2d 669, 671; Stainless, Inc. at 32).

A party seeking or claiming insurance coverage, bears the burden of demonstrating entitlement to coverage (Consolidated Edison Company of New York, Inc. v Allstate Insurance company, 98 NY2d 208, 218 [2002]; Tribecca Broadway Associates, LLC v. Mount Vernon Fire Insurance Company, 5 AD3d 198, 200 [1st Dept 2004]; Meleon v Kreisler Borg Florman General Construction Company, Inc., 304 AD2d 337, 339 [1st Dept 2003]; Chase Manhattan Bank, N.A. v The Travelers Group, Inc., 269 AD2d 107, 108 [1st Dept [*8]2000]; Daniel v Allstate Life Insurance Company, 71 AD2d 872, 872 (2d Dept 1979]). Conversely an insured seeking to negate coverage must demonstrate that no there is no coverage under the policy or that exclusion to coverage applies (Consolidated Edison Company of New York, Inc. at 218; Northville Indus. Corp. v Natl. Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621, 634 [1997]; Technicon Elecs. Corp. v Am. Home Assur. Co., 74 NY2d 66, 73 [1989]).

It is well settled that in order for an insurer to effectively disclaim coverage under an insured's policy, the disclaimer must be given as soon as reasonably possible and "[a] failure by the insurer to give such notice as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability or denial of coverage, precludes effective disclaimer or denial (Hartford v Insurance Company, 46 NY2d 1028, 1029 [1979] [Court held that an unexplained delay in disclaiming coverage was unreasonable as a matter of law.]). Whether a disclaimer was given as soon as reasonably possible is ordinarily a question of fact for the trier of fact since the length and reason for the delay are factual inquiries (id. at 1030). However, when no excuse for the delay in disclaiming is given, the court, can, as a matter of law, conclude that a delay was unreasonable and can estop the insurer from disclaiming coverage (id.).

Generally, whether a disclaimer is given as soon as reasonably possible is measured from the time when the insurer first acquires knowledge of the facts which form the basis of its disclaimer (First National Insurance Company v Jetco Contracting Corp., 1 NY3d 64, 68-69 [2003] [Court held that a delay of 48 days in disclaiming coverage, when the insured knew the basis upon which it disclaimed 30 days prior to the disclaimer and further investigation would not have lead to a different decision, was unreasonable as a matter of law.]). As such, where the basis for the disclaimer is or should be readily apparent to the insurer prior to the onset of the delay in disclaiming, any disclaimer is inexcusable as a matter of law (id.; West 16th Street Tenants Corp. v Public Service Mutual Insurance Company, 290 AD2d 278, 279 [1st Dept 2002]; [Court held that 30 delay in disclaiming was unreasonable as a matter of law, when reason for disclaiming - late notice to the insurer - was readily apparent to the insurer when it first received notice of the claim.]; Nationwide Mutual Insurance Company v Steiner, 199 AD2d 507, 507 [2d Dept 1993] [same].)

It is equally well settled however, that no disclaimer, timely or otherwise is necessary, when the denial of coverage is based of the occurrence falling outside the policy's coverage, meaning that the policy contemplated no coverage in the first instance (Worcester Insurance Company v Bettenhauser, 95 NY2d [*9]185, 188 [2000]; Central General Hospital v Chubb Group Insurance Companies, 90 NY2d 195, 199 [1997 Handelsman v Sea Insurance Company, 85 NY2d 96, 99 [1994]; Prudential Property and Casualty Insurance Company v Hobson, 67 NY2d 19, 21 [1986]; Zappone v Home Insurance Company, 55 NY2d 131, 134 [1982]; Tribeca Broadway Associates at 200-2002; McKeown v Allcity Insurance Company, 272 AD2d 79, 79 [1st Dept 2000]). This is because a failure to disclaim cannot create coverage were no coverage existed in the first instance. As the court in Handelsman stated, "[a] timely disclaimer is not required, however, when the policy on which the claim rests does not, by its terms, cover the incident giving rise to liability" (Handelsman at 99). Stated another way

s]trict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy [associated with failure to timely disclaim], may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage

(Central General Hospital at 199).

Whether a disclaimer is based upon lack of coverage grounds, for which no disclaimer is necessary or upon an exclusion within a policy requiring a timely disclaimer turns on the words in the policy.

In Zappone, the court concluded that the insurer was not obligated to disclaim timely or otherwise, since the basis for disclaiming was no coverage under the policy in the first place. (id. at 135). In that case the insurance policy provided coverage to its insured and a specific vehicle (id. at 134). The insured's brother was involved in an accident with a vehicle not insured by the policy issued by the defendant insurance company (id.). When a claim was made thereunder, the defendant disclaimed, albeit untimely (id. at 134-135). The insureds then brought a declaratory judgment action seeking coverage and the court dismissed the action holding that the accident alleged involved neither the insured nor the motor vehicle insured by defendant's policy (id. at 135). Significantly, the court held that no disclaimer was necessary since the "policy as written could not have covered the liability in question under any circumstances" (id. at 134).

In Tribecca Broadway Associates, LLC, the court similarly held that the insurer was not obligated to disclaim coverage since the same never agreed to insure the insured (id. at 200-201). In that case, the insured was never listed in the policy as an insured and the only evidence of any insurance as to the insured was a certificate of insurance, which the court held was not akin to coverage (id. at 200). Holding that the policy did not cover the insured the court stated ""[i]nsofar as the claim fell outside of the policy's coverage, that carrier was not [*10]required to disclaim as to coverage that did not exist" (id. at 200).

In Metropolitan Property & Casualty Insurance Company v Pulido (271 AD2d 57 [2d Dept 2000]), the court held that no timely disclaimer was necessary since the insurance policy did not provide coverage under the circumstances (id. at 61). In that case a policy was issued to the insureds covering, inter alia, liability stemming from the use of any property wherein they resided (id. at 58). A claim was made for a dog bite occurring within premises owned by the insureds but not where they resided, in holding that no disclaimer was necessary, the court held that

the loss was not covered under the contract [of insurance] which was clearly intended to cover only the insured's residence. ... [Thus], if the policy is void ab initio, the insured who is a claimant cannot create coverage by relying upon the failure to provide a timely notice of disclaimer

(id. at 59-60).

Here, applying the foregoing and well settled principles of law, it is clear that the policy never covered the instant accident such that, no disclaimer was necessary. To be sure, in determining coverage, the court must determining the rights and obligations under the policy using the specific language of the policy itself (Sanabria at 868; State of New York, 66 NY2d 669, 671; Stasack at 866), ascribing to such language "the common sense and common speech of the average person" (Stainless, Inc. at 32—33). A review of the policy's clear an unequivocal terms indicates that the policy will only provide coverage for bodily injury for an accident involving the covered vehicle - here, the 2013 Cadillac - provided it was being operated by the insured - here, Amoghene - or anyone operating the vehicle with Amogene's permission. Thus, where as here, the grounds for denying coverage are that the policy never afforded coverage in the first place no disclaimer is required.

To be sure, no disclaimer, timely or otherwise is necessary, when the denial of coverage is based of the occurrence falling outside the policy's coverage, meaning that the policy contemplated no coverage in the first instance (Worcester Insurance Company at 188; Central General Hospital at 199; Handelsman at 99; Prudential Property and Casualty Insurance Company at 21; Zappone at 134 ; Tribeca Broadway Associates at 200-2002; McKeown at 79). This is because, of course, a failure to disclaim cannot create coverage were no coverage existed in the first instance.

On this record, that the policy did not afford coverage because Mark was involved in an accident while using Amoghene's vehicle without permission. First, Amoghene testified clearly [*11]and unequivocally that he never gave Mark permission to use his vehicle on the date of the instant accident. Second, Amoghene's testimony is bolstered by the police report he filed and where Mark, in relation to the instant accident, was charged with Unauthorized Use of a Vehicle in the First Degree, and by Mark's subsequent indictment for Unauthorized Use of a Vehicle in the Third Degree. Accordingly, all the evidence tendered by plaintiff demonstrates that on the date of the instant accident, Mark was operating the instant vehicle without consent such that he was not an insured as defined by the policy.

Lest there be any doubt that the circumstances herein are tantamount to the absence of coverage for which no disclaimer is required as opposed to an exclusion to coverage requiring a timely disclaimer, the Court need only look at the Katz v Allstate Ins. Co. (96 AD2d 930 [2d Dept 1983]) and Jasper Corp./Celotex Corp. v Dunikowski (229 AD2d 424 [2d Dept 1996]), where the court held that where an insurance policy premised coverage on permissive operation of a covered vehicle no disclaimer was required when coverage was denied because at the time of the accident the vehicle was stolen, i.e., without consent (Katz at 931 ["We agree with the trial court's conclusion that no written notice of disclaimer was required here when, at the time of the accident, the insured's vehicle had been stolen and was being operated by the thief without the knowledge or consent of the owner, and plaintiffs were aware from the inception that the vehicle had been stolen and was being operated by the thief."; Jasper Corp./Celotex Corp. at 426 ["Since John Dunikowski, Jr.'s, use of the car at the time of the accident was nonpermissive, National Union was free to disclaim coverage pursuant to the terms of its insurance policy. Moreover, inasmuch as the company car would not be covered under the policy as written while being operated by an unauthorized driver, National Union's failure to provide a timely denial of coverage cannot estop it from raising its defense of noncoverage"]).

Thus, with respect to whether the policy at issue covers the instant accident, plaintiff establishes prima facie entitlement to summary judgment. Nothing submitted by defendants raises an issue of fact sufficient to preclude summary judgment. At best, defendants submit evidence that on the date of the instant accident and on several occasions prior, Mark represented that he owned the vehicle in question and was using it in connection with his alleged job as a driver. To the extent that Mark's statements constitute inadmissible hearsay, they cannot defeat summary judgment. To be sure the opponent of a motion for summary judgment who seeks to have the court consider inadmissible evidence must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]), or must demonstrate that [*12]otherwise inadmissable evidence would be admissible at trial and raises questions of fact sufficient to defeat the motion (Phillips v Joseph Kantor & Company, 31 NY2d 307, 312 [1972]; Buckley v J.A. Jones/GMO, 38 AD3d 461, 462 [1st Dept 2007]; Levbarg v City of New York, 282 AD2d 239, 241 [1st Dept 2001]; Eitner v 119 West 71st Street Owners Corp., 253 AD2d 641, 642 [1st Dept 1998]). Moreover, inadmissible hearsay, standing alone cannot raise an issue of fact sufficient to preclude summary judgment (Uncyk v Cedarhurst Prop. Mgt., LLC, 137 AD3d 610, 611 [1st Dept 2016] ["hearsay statement may be relied upon to defeat summary judgment where, as here, it is not the only evidence submitted in opposition to the motion."]).

Defendant's remaining arguments are similarly unavailing. For example, denial of the instant motion is not warranted - as averred - pursuant to CPLR § 3212(f). To be sure, pursuant to CPLR § 3212(f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist but are unavailable to the opposing party. Denial is particularly warranted when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party (Franklin National Bank of Long Island v De Giacomo, 20 AD2d 797, 297 [2d Dept 1964]; De France v Oestrike, 8 AD2d 735, 735-736 [2d Dept 1959]; Blue Bird Coach Lines, Inc. v 107 Delaware Avenue, N.V., Inc, 125 AD2d 971, 971 [4th Dept 1986]). However, when the information necessary to oppose the instant motion, is wholly within the control of the party opposing summary judgment and could be produced via sworn affidavits, denial of a motion for summary judgment pursuant to CPLR § 3212(f), will be denied (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999).

A party claiming ignorance of facts critical to the defeat a motion for summary judgment is only entitled to further discovery and denial of a motion for summary judgment if he or she demonstrates that reasonable attempts were made to discover facts which, as the opposing party claims, would give rise to a triable issue of fact (Sasson v Setina Manufacturing Company, Inc., 26 AD3d 487, 488 [2d Dept 2006]; Cruz v Otis Elevator Company, 238 AD2d 540, 540 [2d Dept 1997]). Implicit in this rationale is that the proponent of further discovery must identify facts, which would give rise to triable issues of fact. This is because, a court cannot condone fishing expeditions and as such "[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" (Sasson at 501). Thus, additional discovery, should not be ordered, where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence (Frith v Affordable Homes of America, Inc., 253 AD2d 536, 537 [2d Dept 1998]).

Here, defendants contend that they seek to depose, inter alia, Amoghene, and defendant's adjuster on grounds that "these examinations will lead 'to additional information and discovery.'" This boiler plate assertion is hardly compelling and sufficient under prevailing law. Moreover, here, the only person who is likely to have any information regarding the salient issue - permissive use - is Amoghene, whose sworn testimony defendants already have and which doesn't avail them.

Vicarious Liability

Plaintiff's motion seeking summary judgment and declaration that Amoghene is not liable to defendants because at the time of the instant accident his vehicle was being operated by Mark without Amoghene's consent, is granted. On this record, the rebuttable presumption of consent under VTL § 388 is sufficiently rebutted beyond any factual dispute.

Vehicle and Traffic Law § 388(1) states, in pertinent part, that

e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly and severally liable hereunder.

Thus, without exception, an owner of a motor vehicle is vicariously liable for a motor vehicle accident caused by the use of his vehicle when said vehicle is being operated with the owner's consent. Liability under the statute is purely vicarious and as such, does not turn on any fault of the owner (Naso v Lafata, 4 NY2d 585, 590 [1958]).

Once a ownership of a vehicle is established permission or consent to use the vehicle, either express or implied, is rebuttably presumed (Murdza v Zimmerman, 99 NY2d 375, 380 [2003]; Leotta v Plessinger, 8 NY2d 449, 461 [1960]; St. Andrassy v Mooney, 262 NY 368, 371 (1933). The presumption of consent and permission continues until substantial evidence negating consent is proffered (Leotta at 461; New York Central Mutual Fire Insurance Company v Dukes, 14 AD3d 704, 705 [2d Dept 2005]). Whether the issue of consent can be decided as a matter of law or requires submission to a jury depends on the nature of the evidence rebutting the consent (Country-Wide Insurance Company v National Railroad Passenger Corporation, 6 NY3d 172, 178 [2006]. Significantly, the court in Country-Wide Insurance Company, [*13]stated that As a corollary, however, disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner. Where the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury.

(id. at 178). In Country-Wide Insurance Company, the court granted defendant summary judgment finding that defendant had rebutted permissive use of its vehicle when the disavowals were firm an unassailable (id. at 180). The court further concluded that the lack of consent was further corroborated by contemporaneous accident report (id.). In St. Andrassy, the court, in discussing whether the issue of consent can be decided as a mater of law, stated that summary judgment is inappropriate and the issue of consent is one for the jury i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest, or weakness, may reasonably be disregarded by the jury, its weight lies with the jury

(id. at 368 (1933). In St. Andrassy, the Court set a side a judgment in plaintiff's favor after concluding that defendant had proffered sufficient evidence to rebut the presumption of permissive use (id. at 372). In that case, the uncontroverted evidence, namely denial by all witnesses that the operator of the vehicle had permission to use the same, demonstrated that defendant's vehicle was operated consent defendants' consent (id.). Id.

In Nelson v Ford Motor Credit Company (41 AD3d 444 [2d Dept 2007]), the court granted defendant summary judgment finding that the operator of the defendant's vehicle did not have consent to use the same. The court in that case, acknowledging that consent can either be express, implied, or inferred, nonetheless concluded that defendant submitted substantial evidence that the offending driver lacked express permission to use his vehicle and that there was an absence of evidence from which authority could be inferred (id. at 444-445; see Berett v McNulty, 27 NY2d 928. 929 [1970]; Adamson v Evans, 283 AD2d 527, 528 [2d Dept 2001] [Defendant overcame the presumption of consent when he submitted an affidavit and documentary evidence demonstrating that his car was stolen at the time of the accident alleged.]; Bruno v Privilegi, 148 AD2d 652, 653 [2d Dept 1989] [The court granted defendant summary judgment finding that he had overcome the presumption of permissive use when the uncontroverted evidence, namely affidavits and testimony, established that the driver of defendant's vehicle did not have permission to use the same.]).

Here, for the reasons discussed above, Amoghene's testimony, the police report, and the indictment, rebuts the presumption of [*14]consent imposed by VTL § 388 and, thus, establish that at the time of this accident, Mark was operating Amoghene's vehicle without consent. Plaintiff, therefore, establishes prima facie entitlement to summary judgment.

For the reasons discussed above, namely that defendants' evidence on the issue of consent is comprised of inadmissible hearsay, defendants fail to raise an issue of fact sufficient to preclude summary judgment. To be sure, any of Mark's statements regarding ownership, and thus, permission to use the vehicle constitute inadmissible hearsay. Contrary to defendants' assertion, while the evidence submitted in opposition indicates that Mark had been seen using Amoghene's vehicle prior to the instant accident, this, in the face of Amoghene's firm denials of permission, his report of a crime to the police and Mark's subsequent indictment does not raise an issue of fact on the issue of permissive use (Country-Wide Insurance Company at 180).

Motion for Default Judgment

Plaintiff's Motion seeking a default judgment against Mark and Hernandez is hereby granted. Plaintiff establishes that it has a meritorious cause of action and that despite being served with the summons and complaint, neither Mark nor Hernandez have interposed an answer.

Pursuant to CPLR § 3215[f] "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim"]; Pampalone v Giant Building Maintenance, Inc., 17 AD3d 556, 557 [2d Dept 2005] [Default judgment granted once plaintiff submitted proof of that defendant was served with the summons and complaint and an affidavit of the facts constituting the claim.]; Andrade v Ranginwala, 297 AD2d 691, 691-692 [2d Dept 2002]). Once the requisite showing has been made and the requisite proof proffered, a motion for a default judgment must be granted unless the defendant can establish a meritorious defense to the claims made, a reasonable excuse for the delay in interposing an answer, and that the delay in interposing an answer has in no way prejudiced the plaintiff in the prosecution of the case (Buywise Holding, LLC v Harris, 31 AD3d 681, 683 [2d Dept 2006]); Giovanelli v Rivera, 23 AD3d 616, 616 [2d Dept 2005]).

With regard to establishing the merits of the claim, plaintiff can use an affidavit. Additionally, plaintiff can also use deposition testimony (Empire Chevrolet Sales Corporation v Spallone, 304 AD2d 708, 709 (2d Dept 2003]); Ramputi v Timko Contracting Corp., 262 AD2d 26, 27 [1st Dept 1999]). While plaintiff cannot establish the merits of his or her claims using a complaint verified by an attorney (Deleon v Sonin & Genis, 303 AD2d 291, 292 [1st Dept 2003]); Juseinoski v Board of Education of the City of New York, 15 AD3d 353, 356 [2d Dept [*15]2004]), a complaint verified by an attorney, where the attorney has personal knowledge of facts constituting the claim, is sufficient to establish the merits of a plaintiff's claim (State Farm Mutual Automobile Insurance Company v Rodriguez, 12 AD3d 662, 663 [2d Dept 2004]; Martin v Zangrillo, 186 AD2d 724, 724 [2d Dept 1992]). Similarly, a defendant can establish the merits of his or her defense by submitting an affidavit of merit (Montoya v Richmond County Ambulance Service, Inc., 30 AD3d 385, 385-386 [2d Dept 2006]), or a pleading verified by the individual defendant (Juseinoski at 358; Pampalone at 557). An answer verified by an attorney will not suffice (id.).

In support of this motion plaintiff submits two affidavits of service establishing service of the summons and complaint on Mark and Hernandez. The first affidavit indicates that Mark was served on January 13, 2015. The second affidavit indicates that Hernandez was served on March 24, 2015.

Plaintiff also submits an affidavit from Cathy Owens (Owens), Senior Litigation Adjuster with plaintiff's parent company. Owens' reiterates the allegations in the complaint, detailing the contents of the policy issued to Amoghene, the liability coverage terms therein as well was the evidence indicating that at the time of the accident, Mark was operating the covered vehicle without permission.

Based on the foregoing, plaintiff establishes that Mark and Hernandez were served with process and have nevertheless failed to interpose answers. Plaintiff also demonstrates that it has a meritorious cause of action for declaration, inter alia, that it is not obligated to provide coverage for the instant accident. Thus, plaintiff is entitled to a default judgment (Pampalone at 557; Andrade at 691-692), and liability is, therefore, determined in plaintiff's favor (Rokina Optical Co., Inc. v Camera King, Inc., 63 NY2d 728, 730 [1984]; Arent Fox Kinter Plotkin & Kahn, PLLC v Gmbh, 297 AD2d 590, 590 [2d Dept 2002]). entitling plaintiff to a declaratory judgment. Nothing submitted in opposition warrants denial of the instant motion. It is hereby

ORDERED AND DECLARED that plaintiff's policy does not cover the accident involving defendants. It is further

ORDERED AND DECLARED that with respect to the instant accident, Amoghene is not liable to any of the defendants. It is further

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty days (30) hereof.

This constitutes this Court's decision and Order.

Dated : June 29, 2017

Bronx, New York

______________________________________

Ben Barbato, J.S.C.

Footnotes

Footnote 1:Penal Law § 165.08 states that "A person is guilty of unauthorized use of a vehicle in the first degree when knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle with the intent to use the same in the course of or the commission of a class A, class B, class C or class D felony or in the immediate flight therefrom. A person who engages in any such conduct without the consent of the owner is presumed to know he does not have such consent."