Aspen Am. Ins. Co. v. Smith

• Decision Date: 08 September 2022
• Docket Number: Index No. 526091/2018,Motion Seq. 1-3
• Citation: 2022 NY Slip Op 33167 (U)
• Parties: ASPEN AMERICAN INSURANCE COMPANY A/S/O NOSTRAND ATLANTIC HOLDING LLC, Plaintiff, v. MARCIE ALYSE SMITH, CHARLES CAUMAN-WHITE AND HELEN GAGNON, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 33167(U)

ASPEN AMERICAN INSURANCE COMPANY A/S/O NOSTRAND ATLANTIC HOLDING LLC, Plaintiff,
v.
MARCIE ALYSE SMITH, CHARLES CAUMAN-WHITE AND HELEN GAGNON, Defendants.

Index No. 526091/2018, Motion Seq. 1-3

Supreme Court, Kings County

September 8, 2022

Unpublished Opinion

PRESENT: HON. RICHARD J. MONTELIONE, JUSTICE

DECISION AND ORDER

RICHARD J. MONTELIONE, JUDGE

The following e-filed papers read herein:	NYSEF Nos.:
Notice of Motion (motion seq. 1).........	3
Affidavits (Affirmations) and Exhibits Annexed.........	4-18
Notice of Cross-Motion (motion seq. 2).........	22
Affirmation in Opposition to Motion and in Support of Cross-Motion.........	23
Reply Affirmation.........	24
Notice of Motion (motion seq. 3).........	30
Affirmation in Support.........	31
Affirmation in Opposition.........	37
Reply Affirmation.........	39

On January 4, 2016 a fire at 1306 Atlantic Avenue originated in apartment 3L, which had been leased by defendant Marcie Alyse Smith. Plaintiff, Aspen American Insurance Company (hereinafter "Aspen"), who insured the premises, examined the property and interviewed the occupants, Charles Cauman-White and Helen Gagnon, on January 7, 2016. According to plaintiffs investigator, one of the occupants, Mr. Cauman -White, admitted that he may have left a burning incense stick in the apartment, and as such, Aspen concludes that his negligence caused the fire (NYSCEF #6). This action is for

1

reimbursement of $134,812.07 paid by Aspen in checks dated May 16, 2016 and November 8, 2016 to the building owner, Nostrand Atlantic Holding LLC for the ensuing fire loss claim. Aspen alleges that pursuant to her lease with Nostrand, the lessee, Ms. Smith, was responsible for any damage to the premises.

Aspen moves for a judgment of default (motion, seq. 1). Ms. Smith opposes the motion and cross-moves (motion, seq. 2) for dismissal of the case inasmuch as she was never served with process and the motion for the default judgment was not filed within a year of the purported service. Aspen opposed the cross-motion and moves (mot. seq. 3) pursuant to CPLR 306-b to extend the time to serve Ms. Smith "now that her address has been finally established."

Aspen filed the summons and complaint commencing this action on December 28, 2018. The parties concur that the filing of the action was within the three-year statute of limitations, which would have expired on January 4, 2019. Plaintiff attempted to serve Ms. Smith at a location in Hillsborough, North Carolina, which they believed was where she resided, by affixing the summons and complaint to the door on February 2, 2019 and mailing the summons and complaint two days later to the same North Carolina address. Aspen contends that it diligently searched for Ms. Smith and believed she resided at the North Carolina address they had found, since she had gone to law school in North Carolina many years earlier. However, Ms. Smith did not live in North Carolina, she lived in Brooklyn, New York and was a professor of law at John Jay. She had no connection to the North Carolina address where the summons and complaint were affixed and mailed. She had no notice that the action commenced until the default motion was mailed to her at her Brooklyn address.

The motion for a default judgment was filed on June 30, 2020 and as such was not timely made within a year of the alleged service of February 2, 2019 within the statutory 1-year deadline set by CPLR 3215(c), which states: "Default not entered within one year. If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action."

Aspen...