Opinion
Index No. 3833/2019 Mot. Seq. No. 5-7
01-11-2024
CHRISTOPHER SHIN, Plaintiff, v. AMERICAN TRANSIT INSURANCE COMPANY and AMERICAN T, INC., Defendants.
Unpublished Opinion
Motion Date: 10-30-23
DECISION/ORDER
PETER P. SWEENEY, J.S.C.
Upon the following e-filed documents, listed by NYSCEF as item numbers 37-50, 53-57, 59-67, 68-74, the motions are decided as follows: In this action to recover the amount of an unsatisfied judgment, in mot seq no. 5, filed on July 27, 2023, defendant, AMERICAN TRANSIT INSURANCE COMPANY (" ATIC") moves pursuant to CPLR 3212 for an Order: 1) dismissing the complaint; 2) declaring that ATIC timely and properly disclaimed coverage for the subject accident; 3) stating that ATIC has no duties or obligations to defend or indemnify under the subject policy; and 4) directing that plaintiff is not entitled to recover any amounts of the unsatisfied judgment as against ATIC. ATIC moved for this relief despite notwithstanding the fact that the complaint had already been dismissed and the matter marked disposed.
In mot seq no. 6, plaintiff seeks an order: 1) pursuant to CPLR 5015(a)(1) vacating the order which dismissed the action; 2) restoring plaintiffs motion for summary judgment and defendants' cross-motion to dismiss.
In mot seq no. 7, ATIC cross moves for an order pursuant to CPLR 3212 dismissing the complaint and for a declaration that ATIC timely and properly disclaimed coverage for the subject accident.
Background:
On April 20, 2018, plaintiff was involved in an automobile incident with a vehicle owned and operated by non-party Octavia Garcia, who was an insured under a policy of insurance issued by ATIC. Plaintiff was granted a default judgment on liability in the underlying action filed under index no. 2682/18, solely against Garcia, as a result of Garcia's negligent operation of a motor vehicle. At the inquest on damages held on July 23, 2019, plaintiff was awarded $1,700,000. On September 6, 2019, judgment was formally entered in plaintiffs favor for $1,700,000 against Garcia with interest running from July 23, 2019.
This action was commenced on November 7, 2019 pursuant to Insurance Law 3420(a)(2) to enforce the unsatisfied judgment against ATIC as the liability carrier for Garcia. ATIC claims that the first time it was made aware of litigation against Garcia was when they received a copy of the instant summons &complaint. On November 19, 2019, ATIC formally disclaimed coverage based upon a violation of the terms of the insurance policy requiring prompt notice of a lawsuit against the insured.
Plaintiffs first motion for summary judgment (mot seq no. 1) was denied by decision/order dated January 11,2021. Plaintiffs second motion for summary judgment (mot seq no. 2) was marked off on April 10, 2023. On July 24, 2023, plaintiffs third motion for summary judgment (seq no. 3) against ATIC was marked off and ATIC's cross motion to dismiss (seq no. 4) was granted.
The court will first address plaintiffs mot seq no. 6. A party seeking to vacate an order entered upon his or her default in answering or appearing upon the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious claim or defense (see CPLR 5015[a][1]; Rizzo v GMES, LLC, 190 A.D.3d 995, 996-997, 136 N.Y.S.3d 890; EMC Mtge. Corp, v Toussaint, 136 A.D.3d 861, 862, 25 N.Y.S.3d 312). Whether an excuse is reasonable is a determination that rests within the sound discretion of the Supreme Court (see Rizzo v GMES, LLC, 190 A.D.3d at 996; Quercia v Silver Lake Nursing Home, Inc., 176 A.D.3d 1244, 1246, 111 N.Y.S.3d 67). While the Supreme Court has the discretion to accept law office failure as a reasonable excuse, the excuse must be supported by detailed allegations of fact explaining the law office failure (see Cantor v. Flores, 94 A.D.3d 936, 936-937, 943 N.Y.S.2d 138).
In an affirmation in support, plaintiffs counsel claims:
Your affiant relied on his per diem counsel, who had appeared at the previous motion date some seven days earlier, i.e., July 17, 2023 on Plaintiffs summary judgment motion. Most undesirably, he failed to communicate that an in-court appearance was necessary for the next appearance. Unfortunately, his email sent to me after his appearance on
July 17,2023, stated that your Honor would decide the motion on submission, on the adjourned date of one week later, July 24, 2023.(NYSCEF Doc no. 54).
Plaintiffs counsel shifts blame for his non-appearance to his per-diem counsel alleging that the per diem mistakenly informed him that the July 24, 2023 appearance was for submission of the pending motion and no appearance was necessary. In support of this contention, plaintiff annexes email correspondence with his per-diem counsel. The email appears to indicate that the court would have taken the papers on submission on July 14, 2023; however, thanks to the per diem's oral argument, the motion would be adjourned one week for submission of opposition to ATIC's cross motion. The email does not state that no appearance would be necessary on July 24. 2023. Furthermore, this part's rules requiring an in-person appearance on all motions were published in July of 2022 and the rules have not changed on this issue. Here, plaintiffs counsel's argument as to how or why he defaulted in appearing is unpersuasive. Accordingly, plaintiff failed to establish the excuse of law office failure. Since plaintiff failed to establish an excuse for the default, it is unnecessary to consider the alleged merit to the action.
The motion is also denied on the basis that plaintiff provides no excuse for filing four motions for summary judgment, with two of the motions requiring determination. "Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefern Food Corp., 69 A.D.3d 844, 845, 892 N.Y.S.2d 764 [2010]; see Kimber Mfg., Inc. v Hanzus, 56 A.D.3d 615, 868 N.Y.S.2d 94 [2008]). Plaintiff has not proffered newly discovered evidence or other sufficient cause for this motion.
Accordingly, It is hereby ORDERED, that mot scq no. 5 is deemed moot; it is further
ORDERED, that mot seq no. 6 is DENIED in its entirety; it is further
ORDERED, that mot seq no.7 is deemed moot as the action was already dismissed.
This constitutes the decision and order of the court.