Opinion
Motion No: 2011-01839 qc
08-23-2013
Enrique Ramos, Appellant, v. Allstate Insurance Company, Respondent.
, P.J.
MICHELLE WESTON
THOMAS P. ALIOTTA, JJ.
DECISION & ORDER ON MOTION
Motion by appellant for leave to reargue an appeal from an order of the Civil Court of the City of New York, Queens County, entered May 5, 2011, which was determined by decision and order of this court dated January 14, 2013, or, in the alternative, for leave to appeal to the Appellate Division from the decision and order of this court.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that, on the court's own motion (Pesce, P.J. and Aliotta, J., concur; Weston, J., dissents with a memorandum), the decision and order of this court dated January 14, 2013 (38 Misc 3d 135[A], 2013 NY Slip Op 50074[U]) are recalled and vacated, appellant's motion is denied as moot and the following decision is substituted for the decision dated January 14, 2013:
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered May 5, 2011. The order denied plaintiff's motion for summary judgment without prejudice to renewal upon the completion of discovery.
ORDERED that the appeal is dismissed, all proceedings taken in the Civil Court, including the order entered May 5, 2011, are vacated, and the complaint is dismissed unless, within 30 days of the date of this decision and order, plaintiff serves and files in the Civil Court a written stipulation, signed by plaintiff, consenting to reduce the ad damnum clause of the complaint so as to bring the cause of action within the court's jurisdiction; in the event that plaintiff so stipulates, the order is reversed, without costs, and plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff judgment in the principal sum of $25,000.
In this action pursuant to Insurance Law § 3420 (a) (2), plaintiff seeks to recover upon an unsatisfied judgment that he had obtained against defendant's insureds. Plaintiff demands the judgment amount of $25,000 plus the interest that accrued from the date of the entry of the judgment. Plaintiff's motion for summary judgment was denied by the Civil Court without prejudice to renewal upon the completion of discovery.
The Civil Court has jurisdiction in money actions where the amount sought to be recovered does not exceed "$25,000 exclusive of interest and costs" (CCA 201, 202). As noted by Professor Siegel, the exclusion of interest and costs refers to interest that the law imposes after a default in payment, not to interest that is part and parcel of the cause of action (David D. Siegel, 1990 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Part 3, CCA 201, 2013 Pocket Part, at 16; see Irni v Williams, 146 Misc 2d 894 [Civ Ct, Kings County 1990]). In our view, the postjudgment interest sought against defendant insurer is part and parcel of the cause of action against defendant insurer upon the unsatisfied judgment (see generally Shnarch v Empire Mut. Ins. Co., 144 AD2d 795 [1988]). Consequently, the endorsed complaint states but one cause of action seeking damages exceeding the $25,000 monetary jurisdictional limit of the Civil Court (CCA 202), thereby depriving the court of subject matter jurisdiction. Accordingly, the appeal is dismissed, the order appealed from and all other proceedings vacated, and the complaint dismissed unless plaintiff stipulates to reduce the ad damnum clause so as to bring the claim within the Civil Court 's jurisdictional limit (see Campbell v Fairfield Presidential Assoc., 5 Misc 3d 130[A], 2004 NY Slip Op 51296[U] [App Term, 2d & 11th Jud Dists 2004]; Siegel, NY Prac § 23, at 24-25 [5th ed]).
In the event that plaintiff so stipulates, the order is reversed and plaintiff's motion is granted to the extent of awarding plaintiff judgment in the principal sum of $25,000.
Plaintiff met his prima facie burden of establishing his entitlement to judgment as a matter of law under Insurance Law § 3420 (a) (2). Plaintiff demonstrated that he had served defendant with a notice of entry of the default judgment in the underlying personal injury action by submitting an affidavit of service attesting that a copy of the judgment, with notice of its entry, had been mailed to defendant and its insureds on December 30, 2010. The affidavit of service created a presumption of proper mailing and receipt (see Alejandro v Liberty Mut. Ins. Co., 84 AD3d 1132 [2011]). Plaintiff further alleged that the judgment in the underlying action had remained unsatisfied for 30 days thereafter.
In opposition to the motion, defendant was obligated to present proof in admissible form establishing that a material question of fact exists warranting a trial (see CPLR 3212 [b]; Alejandro, 84 AD3d at 1133). In its opposition papers, defendant did not dispute that plaintiff had made a prima facie showing but simply stated that plaintiff's motion should be denied because plaintiff had failed to respond to defendant's discovery demands. Absent from defendant's opposition papers was an affidavit from someone with personal knowledge of the facts asserting that defendant had not received notice of the commencement of the underlying action until after the entry of judgment against its insureds, so as to entitle defendant to litigate the underlying merits of the case. We note that the answer is not verified and, thus, cannot be considered in place of such an affidavit (see CPLR 105 [u]), and the documents annexed to defendant's opposition papers were likewise insufficient to establish defendant's lack of knowledge of the underlying action so as to raise a triable issue of fact (see Alejandro, 84 AD3d at 1133; Guzman v Nationwide Mut. Fire Ins. Co., 62 AD3d 946 [2009]; cf. German v GEICO Gen. Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52228[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant is collaterally estopped from challenging the liability and damages determinations that were made in the underlying action against its insureds (see Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637, 640 [2010]).
We further find that defendant cannot rely upon the outstanding discovery demanded to defeat plaintiff's motion for summary judgment as premature (see CPLR 3212 [f]), as the discovery requested is not essential to justify opposition to the motion. Any facts establishing that defendant had not received notice of the commencement of the underlying action until after the entry of the judgment against its insureds are within defendant's exclusive knowledge and control (see Younger v Spartan Chem. Co., Inc., 252 AD2d 265 [1999]). To the extent that defendant was attempting to seek discovery in order to collaterally attack the validity of the underlying judgment, it could not resort to CPLR 3212 (f) as the basis for a denial of plaintiff's motion for summary judgment.
Pesce, P.J., and Aliotta, J., concur.
Weston, J., dissents and votes to grant the branch of appellant's motion seeking leave to reargue and, upon reargument, to recall and vacate so much of this court's decision and order dated January 14, 2013 as denied appellant the interest that accrued from the date of the underlying judgment and to substitute therefor a provision granting appellant that interest, in the following memorandum:
I see no reason to dismiss, sua sponte, plaintiff's complaint for lack of jurisdiction unless plaintiff consents to reduce the ad damnum clause of the complaint. To the contrary, I would grant plaintiff's unopposed motion for reargument and, upon reargument, grant plaintiff's request for interest from the date of entry of the underlying judgment.
New York City Civil Court Act § 202 provides that the Civil Court shall have jurisdiction in actions seeking a maximum of $25,000. Section 201 of the Act further provides that "[t]he phrase $25,000', whenever it appears herein, shall be taken to mean $25,000 exclusive of interest and costs'" (emphasis added)(and see NY Const, art 6, § 15). Although the term "interest" is not defined, courts have drawn a distinction between contractually agreed interest that is part of a claim (i.e., interest on a promissory note) and court-awarded interest (see Metrotran Adv. Trust Fund v Cado Trans., 156 Misc 2d 725 [Civ Ct, Kings County 1993]; Irni v Williams, 146 Misc 2d 894 [Civ Ct, Kings County 1990]; but see McPartland v Young, 31 Misc 3d 1237 [A], 2011 NY Slip Op 51024[U] [Dist Ct, Suffolk County 2011] [excluding all interest from jurisdictional amount, regardless of whether it is court-imposed or part of the plaintiff's cause of action]). Contractual interest demanded pursuant to a debt is included in the jurisdictional amount since it is part of a single cause of action (see Irni v Williams, 146 Misc 2d at 894). However, court-awarded interest is excluded from the jurisdictional amount since it is imposed by the court as a penalty after a default in payment (see Metrotran Adv. Trust Fund v Cado Trans., 156 Misc 2d at 726-727; see also David D. Siegel, 1990 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Part 3, CCA 201, 2013 Pocket Part, at 16 [section 201 refers to "penalty interest . . . [i]t does not refer, however, to interest that is part and parcel of the plaintiff's cause of action"]).
Here, the requested interest is not part of the underlying claim, as the majority concludes. Instead, plaintiff obtained a $25,000 judgment in a personal injury action, sued to recover that judgment when it was not satisfied, and now seeks court-awarded interest from the date of entry of the underlying judgment. Nothing in the complaint indicates that plaintiff seeks interest pursuant to a contract. Moreover, nothing in the complaint indicates that plaintiff seeks interest pursuant to 11 NYCRR 60-1.1(b), which requires an insurer to pay postjudgment interest on that portion of the award which does not exceed the policy limits. Since the interest sought is court-awarded and not "part and parcel of the plaintiff's cause of action," I would not vacate all previous proceedings and dismiss the complaint unless plaintiff stipulates to a reduced ad damnum clause (David D. Siegel, 1990 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Part 3, CCA 201, 2013 Pocket Part, at 16).
To the contrary, I would grant reargument and, upon reargument, grant plaintiff's request for interest. Defendant defaulted in payment of the judgment and, accordingly, plaintiff is entitled to interest. Nothing in the record suggests that the policy terms conditioned defendant's obligation to pay interest upon it having defended against the underlying action (cf. Alejandro v Liberty Mut. Ins. Co., 84 AD3d 1132 [2011] [pursuant to the terms of the defendant's policy, the defendant's obligation to pay postjudgment interest was conditioned upon it having defended against the underlying action]).
ENTER:
PAUL KENNY
Chief Clerk