Court Denies Default Motion in DJ Action Even Though Defendants Defaulted

Court Denies Default Motion in DJ Action Even Though Defendants Defaulted

Interboro Ins. Co. v Rosetta Dawkins et al.

Plaintiff INTERBORO INSURANCE COMPANY moves pursuant to CPLR 3215 for a default judgment against defendants MERIT ACUPUNCTURE, AVENUE C MEDICAL, P. C. PROFESSIONAL HEALTH IMAGING and TOTAL MOBILITY, P.C. (collectively, the “Provider Defendants ).

Plaintiff purports to have discontinued the action as against its insured, defendant ROSETTA DA WKINS and defendant HARMONY CHIROPRACTIC, P.C. The Court has received no opposition to this motion.

This is a declaratory judgment action in which plaintiff seeks a determination that it is not obligated to provide No Fault benefits to DAWKINS or to her assignees or health care providers, particularly the Provider Defendants, in connection with a motor vehicle accident that allegedly occurred on December 8, 2010. Plaintiff admits that DA WKINS was insured on the date of the Accident, but claims that coverage was vitiated by the failure of DAWKINS to appear for an Examination Under Oath which is a prerequisite to coverage under the applicable policy of automobile insurance and insurance regulations.

Plaintiff ’s counsel claims to have sent three letters by Certified Mail, Return Receipt Requested, and by regular mail, to DAWKINS at the address provided in her claim for No Fault benefits, requesting her appearance at an EUO on 2/10/11 , 2/25/11 and 3/11/11, respectively. According to plaintiff ’s counsel, DAWKINS failed to appear on all of the scheduled dates. Counsel states that on March 21, 2011, plaintiff denied DAWKINS’ claim for No Fault benefits and all of the Provider Defendants’ bills.

Counsel claims that all bills received thereafter were denied within 30 days of receipt.

Plaintiff now moves for a default judgment based upon the failure of all of the Provider Defendants to answer or otherwise appear in this action. In support of its motion, plaintiff submits: (i) the Affirmation in Support by its attorney, dated August 4 2011 (the “Attorney Affirmation ); (ii) a copy of the Summons and so-called Verified Complaint (with no copy of the verification); (iii) Affidavits of Service, attesting to service of the Summons and Complaint upon A VENUE C, HARMONY, PHI and TOTAL MOBILITY by delivery to the New York Secretary of State pursuant to Business Corporation Law 306; (iv) Copies of letters dated January 26, 2011, February 14, 2011, and February 24, 2011, which were purportedly sent to DAWKINS for purpose of notifying her of the scheduled EUOs; (v) Affirmation of plaintiffs attorney, which is not dated (the “Undated Affirmation ); and (vi) Affidavit of plaintiffs Claim Representative sworn to on August 4, 2011 (the “Party Affidavit”).

At the outset, the Court notes an irregularity in this application that raises the Court’s concern. Every document submitted to the Court (including the Attorney Affirmation), which purports to bear, or is required to bear, the signature of plaintiff ’s counsel, Jason Tenenbaum, Esq., is either unsigned or contains an illegible and unformed marking that is not only nonuniform, but is clearly and largely different on each document. In view of the recent, well-publicized “robo-signing” scandal, the Court finds that this renders the attorney’s signature questionable and the entire application suspect.

Apart from the foregoing, the Court finds that the proof is inadequate. First plaintiff fails to provide proof of service of the Summons and Complaint upon MERIT. Accordingly, no default judgment may be granted against that defendant. The service upon the remaining Provider Defendants pursuant to Business Corporation Law 306 is valid for purposes of jurisdiction, but plaintiff fails to show additional service pursuant to CPLR 3215(g)(4). This alone is sufficient to defeat the application for a default judgment.

Second, plaintiff fails to show proof of service of the Notice of Motion upon DAWKINS or HARONY, or to demonstrate that such service was not required. There is no proof that either of these defendants were in default. The RJI indicates that issue was not joined with respect to DAWKINS, but it is silent with respect to HARONY. In either case, insofar as the RJI is unsigned, it is devoid of probative value. Further plaintiff fails to provide proof of service of the Summons and Complaint upon DAWKINS. Without such proof, her default cannot be established. Presumably, DAWKINS and HARMONY were not served with this motion because plaintiff purports to have discontinued the action as against these defendants. Plaintiff fails to show however, that the purported discontinuance has been effected in accordance with CPLR 3217. Absent proof of a proper and effective discontinuance, it is incumbent upon plaintiff to demonstrate service of this motion upon DAWKINS and HARMONY, or to show that such service was not required. Plaintiff has done neither.

Plaintiff ’s proof of the merits is perfunctory. Although unopposed, this motion may be granted only upon plaintiff ’s demonstration of a prima facie right to declaratory relief. See Merchants Insurance Company of New Hampshire Inc. v. Long Island Pet Cemetery, 206 AD2d 827; Mount Vernon Fire Ins. Co. v. NIBA Construction Inc., 195 AD2d 425; Joosten v. Gale, 129 AD2d 531. See also CPS Group, Inc. v. Gastro Enterprises, Corp., 54 AD3d 800. The standard of proof set fort in Joosten and progeny is not stringent. At minimum, however, some first-hand confirmation of the facts is required. Joosten v. Gale, 129 AD2d at 535.

Plaintiff fails to meet this burden. The Attorney s Affirmation is replete with boilerplate. For example, the affirmation recites: “On 1/26/11 , The Law Office of Jason Tenenbaum, P.C. (on behalf of Plaintiff INTERBORO INSURANCE COMPANY) sent to Rosetta Dawkins (and his/her attorney if one was retained) at the address stated on the application for benefits a letter requesting that he/she attend an Examination Under Oath (‘EUO’) on 2/25/11, at a court reporting center. “ This type of language, coupled with the dubious signature at the very least raises questions regarding the personal knowledge of the purported affirmant.

The Party Affidavit and Undated Affirmation speak only to the general practices of plaintiff and plaintiff’s counsel with respect to the mailing of EUO notices. The application is devoid of first-hand testimony or substantiating documentation regarding the attempt to secure DAWKINS’ attendance at the EUO. There is no evidence that the mailing address on the EUO notice was the current and valid address of Dawkins. Plaintiff does not provide a copy of the application for benefits which allegedly contains this address, or any other documentary proof.

Further plaintiff does not provide a copy of the Certified Mail Return Receipt or any other evidence showing the result of the mailing – i.e., whether anyone signed for the letter or whether it was returned unclaimed.

In the face of insufficient proof of notice, DAWKINS’ inaction does not support an inference that she knowingly or deliberately breached her obligation to appear for an EUO. Based upon the foregoing, and particularly in view of the specter of unreliability permeating this application, the Court finds that plaintiff is not entitled to the relief sought.

Accordingly, it is ORDERED, that plaintiffs motion for a default judgment pursuant to CPLR 3215 is denied. Plaintiff shall serve a copy of this Order upon all defendants within ten (10) business days of entry, and shall fie proof of such service with the Court, on or before any further application in this matter.

This constitutes the Order of the Court.

Comment: There were six defendants in this action, and none of them appeared or answered even though there was no question that they were served. This is a declaratory judgment action, not an action for money; it only asks the court to declare the respective rights and liabilities of the parties under an insurance contract. Yet the Court seems to have taken upon itself to question the plaintiff ’s evidence as though it were acting as an advocate for these defaulting defendants at an inquest. The question of whether or not the addresses to which the EUO letters were sent were the same addresses as on the application should not have been an issue for a default judgment. The CPS case, cited here by the Court, stated in part, “Here, neither the allegations of the complaint nor the plaintiff ’s affidavit set forth facts sufficient to satisfy the plaintiff ’s burden of establishing viable claims, inter alia, for declaratory relief…” In the case at hand, all that should have been required for a default judgment was a Complaint which set forth a cognizable claim for relief, and proof of service of both the Complaint and the Motion. Beyond that, it should have been up to the defendants to challenge the merits. The Court here imposed a much stricter standard for a default than the statute or appellate case law require.

2012 NY Slip Op 30242(U) Supreme Court, Nassau County Docket Number: 6908/11 Judge: F. Dana Winslow