Motor Veh. Acc. Indem. Corp. v Tineo

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Motor Veh. Acc. Indem. Corp. v Tineo 2018 NY Slip Op 31687(U) July 13, 2018 Supreme Court, New York County Docket Number: 452452/2017 Judge: Kathryn E. Freed 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. [*FILED: NEW YORK COUNTY CLERK 07/20/2018 12:44 PM 1] NYSCEF DOC. NO. 18 INDEX NO. 452452/2017 RECEIVED NYSCEF: 07/20/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. KATHRYN E. FREED IAS MOTION 2 IND EX N0. 452452/2017 Justice ----------------------------------------------------------------------------X MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Plaintiff, MOTION SEQ. NO. 001 -vJOHNNY TINEO, DECISION AND ORDER Defendant. -----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 were read on this motion to/for JUDGMENT - DEFAULT Upon the foregoing documents, it is Ordered th.at the motion is granted. Plaintiff Motor Vehicle Accident Indemnification Corporation ("MVAIC") moves, pursuant to CPLR 32 l 5(a), for a default judgment against defendant Jonny A. Tineo to recover the sum of$50,000.00, plus interest from, February 2, 2001, for reimbursement of monies it expended pursuant to Articles 51 and 52 of the New York State Insurance Law ("Insurance Law"). Said monies were expended due to a motor vehicle accident and the resulting claims paid by MVAIC to the injured parties, Maria Dionisia Duarte, in the amount of $32,465.30, and Stuart R. Lang, in the amount of $17,534.70, due to defendants' failure to carry legally required motor vehicle insurance. 452452/2017 MOTOR VEHICLE ACCIDENT vs. TINEO, JOHNNY A Motion No. 001 1 of 4 Page 1of4 [*FILED: NEW YORK COUNTY CLERK 07/20/2018 12:44 PM 2] NYSCEF DOC. NO. 18 INDEX NO. 452452/2017 RECEIVED NYSCEF: 07/20/2018 Factual and Procedural Background: In an October 27, 2017 affidavit of indebtedness (Doc. 11) submitted in support of the within motion, Fred Fossett, President of MV AIC, states that, pursuant to the facts set forth in the complaint (Doc. I), on February 21, 200 I, Maria Dionisia Duarte and Stuart R. Lang were injured in a motor vehicle accident. 1 The injuries were caused by an uninsured vehicle, identified as a 1990 Toyota, NY license plate number CH324A and VIN number 4Tl SV2EOLU181822, owned by defendant Jonny A. Tineo. Id. Pursuant to section 52 l 3(b) of the New York State Insurance Law, MV AIC entered into a settlement with the injured parties for the amounts previously set forth in the total amount of $50,000,00, which sum was paid to the injured parties on February 5, 2015. Id., at par. 3. MVAIC, in its role as a corporation created pursuant to Article 52 of the Insurance Law, has the statutory responsibility of processing claims and compensating innocent victims of motor vehicle accidents caused by financially irresponsible motorists. Pursuant to section 5209 of the Insurance Law, MVAIC undertook an investigation which revealed that defendant Tineo was liable to MV AIC since the insurance policy on defendant's car was cancelled as of January 6, 2001. See Doc. 15. MVAIC, by its attorney, Timothy Murtha, Esq., avers that defendant Jonny A. Tineo was served with the summons and complaint on September 28, 2017, Doc. 6, at par. 6. Defendant was mailed an additional copy of the summons and complaint pursuant to CPLR 3215(g). Doc. I 0. Plaintiff's couns.el avers that defendant has failed to answer or otherwise appear in this matter. Doc. 6, at par. 6. Therefore, MVAIC asks that its motion for a default judgment be granted against defendant in the sum of$50,000.00. In support of the motion, MVAIC also submits the summons and complaint (Doc. 8); a Payment Listing of the monies paid to the injured parties (Doc. 12); the 1 All references are to the documents filed with NYSCEF in connection with this action. 452452/2017 MOTOR VEHICLE ACCIDENT vs. TINEO, JOHNNY A Motion No. 001 2 of 4 Page 2 of 4 [*FILED: NEW YORK COUNTY CLERK 07/20/2018 12:44 PM 3] NYSCEF DOC. NO. 18 INDEX NO. 452452/2017 RECEIVED NYSCEF: 07/20/2018 Affidavit of Facts (Doc. 11) owed to MV AIC (Doc. 12); the police report of the subject accident (Doc. 14); and a letter of cancellation of defendant Jonny A. Tineo's insurance coverage. (Doc. 15). Conclusions of Law: CPLR 3215(a) provides, in pertinent part, that "[w]hen a defendant has failed to appear, plead or proceed to trial..., the plaintiff may seek a default judgment against him." It is well settled that "[ o ]n a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing." Atlantic Cas. Ins. Co. v R.JNJ Servs. Inc., 89 AD3d 649, 651 (2d Dept 2011). Moreover, a default in answering the complaint is deemed to be an admission of all factual statem·ents contained in the complaint and all reasonable inferences that flow from them. See Woodson v Mendon Leasing Corp., 100 NY2d 63 (2003). In the case at bar, MV AIC has submitted its summons and complaint, along with the affidavits of service relating thereto plus the affidavits of additional mailings and an affidavit of indebtedness containing the facts constituting the claim, and a _payment listing of all payments incurred pursuant to the underlying matter establishing that the amount owed by defendant to MVAIC is $50,000.00. MVAIC asks for interest from February 21, 2001. However, without any supporting documents reflecting why it took MVAIC so long to make the $50,000.00 payment, this Court is only granting statutory interest from February 5, 2015, the date the said payment was made. 452452/2017 MOTOR VEHICLE ACCIDENT vs. TINEO, JOHNNY A Motion No. 001 3 of 4 Page 3 of4 [*FILED: NEW YORK COUNTY CLERK 07/20/2018 12:44 PM 4] NYSCEF DOC. NO. 18 INDEX NO. 452452/2017 RECEIVED NYSCEF: 07/20/2018 Therefore, in accordance with the foregoing, it is hereby: ORDERED that the motion by the plaintiff Motor Vehicle Accid~nt Indemnification Corporation for a default judgment against defendant Jonny A. Tineo is granted in the amount of $50,000.00, plus interest from February 5, 2015, as calculated by the Clerk; and it is further, ORDERED that plaintiff Motor Vehicle Accident Indemnification Corporation, shall serve a copy of this order on defendant Jonny A. Tineo and the Trial Support Office at 60 Centre Street, Room 158; and it is further, ORDERED that this constitutes the decision and order of this Court. 7/13/2018 DATE CHECK ONE: CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 4 of A 452452/2017 MOTOR VEHICLE ACCIDENT vs. TINEO, JOHNNY4 Mntinn Nn nn1 ~ NON-FINA[ DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of 4

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