Haskins v. Allstate Ins., 2004 NY Slip Op 50997(U) (NY 7/1/2004)

• Citation: 2004 NY Slip Op 50997(U)
• Decision Date: 01 July 2004
• Docket Number: 7643/03.
• Parties: MARY HASKINS and CRYSTAL HASKINS, Plaintiffs, v. ALLSTATE INSURANCE, Defendant
• Court: New York Court of Appeals

Page 1

2004 NY Slip Op 50997(U)

MARY HASKINS and CRYSTAL HASKINS, Plaintiffs, v. ALLSTATE INSURANCE, Defendant

7643/03.

Supreme Court of the State of New York, Bronx County.

Decided July 1, 2004.

GEORGE D. SALERNO, J.

Plaintiffs move for an order pursuant to Insurance Law 3420(b) granting summary judgment against defendant Allstate Insurance Company (Allstate).

This motion stems from a motor vehicle accident that occurred in the State of Connecticut on February 21, 1998 in which plaintiffs Mary Haskins and Crystal Haskins sustained personal injuries. Both plaintiffs were passengers in the motor vehicle driven by Allstate's insured Dahl Haskins. He is the father of Crystal Haskins and the husband of Mary Haskins. It is undisputed that Dahl Haskins lost control of his vehicle and struck a concrete [mediator] on Interstate 95 in Greenwich Connecticut. The Haskins initially brought an action against Dahl Haskins in the Supreme Court in Bronx County to recover damages for personal injuries sustained as a result of the accident. Dahl Haskin's counsel attempted to interpose an answer which plaintiff rejected as untimely. Defendant, thereafter, moved to compel plaintiffs to accept his answer. By order dated July 7, 2000 defendant's motion was granted without opposition, however by the time this order was granted plaintiffs had already commenced a second personal injury action against Dahl Haskins. This court also observed that defendant's counsel in the first action did not serve a copy of the court's order, vacating the default, until June 15, 2001.¹ The court record further reflects that plaintiffs' first action was administratively dismissed as a result of a "clerk's call" on May 29, 2001. Plaintiffs' counsel nevertheless stated that pursuant "to CPLR 3215(c) that action was deemed abandoned" (referring to plaintiffs' first action).² CPLR 3215(c) refers to a default not entered within one year. Here plaintiffs' counsel points to CPLR 3215(c) as the reason for the commencement of a second action involving the same parties and the same occurrence. The second action was filed under Index No. 21112/99 which obviously means that the second action was commenced prior to the dismissal of the clerks call on May 29, 2001. Consequently, notwithstanding plaintiffs' contention that the first action was deemed abandoned the first action was still pending when the second action was commenced.

In any event the second action , as previously stated, was commenced on October 1, 1999 and when defendant failed to answer this second action plaintiff Dahl Haskins moved to enter a default judgment. Defendant's Allstate initial argument implies, without sufficient proof, collusion between plaintiffs and Allstate's insured regarding the manner of service utilized by the plaintiff. Plaintiffs' effectuated service (in the second action) of the summons and complaint upon Dahl Haskins by affixing a true copy of the summons and verified complaint on September 30, 1999 at his residence and mailing a copy to Dahl Haskins at his residence. Contrary to Allstate's assertion, the affidavit of service established due diligence to effect personal service and no legal authority is presented requiring a plaintiff to serve a defendant at his place of business when personal service could not be made at the defendant's personal residence.

Allstate also alleges that plaintiffs' judgment, in the second action, was obtained by fraud and misconduct and is therefore subject to collateral attack. In support of this argument, Allstate cites Hernandez v. Am. Transit Ins. Co. 2Ad 3d 584, 768 N.Y.S.2d 362 where the court held that a judgment entered through fraud or other misconduct practiced on the court is a nullity. The court's opinion, however does not set forth the evidence presented that was sufficient "to raise a triable issue of fact as to whether the plaintiff had a basis upon which to enter the judgments." Here defendant has not established misconduct by plaintiffs regarding the commencement of the action against Allstate. At best plaintiffs' actions such as non personal service may seem suspicious but such conduct can not on the record here constitute misconduct. Plaintiffs fully complied with the service requirements set forth in CPLR 308(4). Several cases presented by plaintiffs in support of their contention that service was proper make it clear that three attempts to serve a defendant at his home constitutes due diligence justifying service under CPLR 308 (4). (Dunleavy v. Moya, 237 Ad2d 176, 655 N.Y.S.2d 176; Lara v. 1010 E. Tremont Realty Corporation 205 AD2d 468, 614 N.Y.S.2d 6.) Moreover, Allstate offers no denial that it was served with the summons and complaint and fails to provide an explanation regarding its failure to answer the complaint. The principal argument raised by Allstate is that Mr. Haskins its insured is "cooperating" with the prosecution of this matter and because the parties all reside together this court should infer that the plaintiffs and Dahl Haskins somehow prevented Allstate from either seeking a dismissal after the second action was commenced on the theory that another action was pending or that the parties prevented Allstate from timely serving an answer. This procedural quagmire created, in part, by the plaintiffs could have easily been resolved by service of a timely answer asserting, inter alia, the affirmative defense that another action was pending which had not been dismissed as a result of the Clerk's call.. Moreover, Allstate has not sought, by way of a cross motion seeking affirmative relief, to vacate the default judgment which it now challenges in the face of plaintiffs' motion for summary judgment. Manifestly, this court is empowered to vacate the default judgment provided a showing is made demonstrating excusable neglect, newly discovered evidence, fraud, misrepresentation by an adverse party or lack of jurisdiction (see Woodson v. Mendon Leasing Corporation 100 NY2d 62, 68, 760 N.Y.S.2d 727.) Allstate has not made a prima facie showing regarding any of the categories outlined in Woodson, supra, that could provide a basis to vacate its default. In addition, plaintiffs' reply affirmation includes a letter from plaintiffs attorney directed to Allstate August 2, 1999, which included a copy of the summons and complaint with an affidavit of service, requesting Allstate to serve an answer on behalf of its insured. Allstate failed to respond. Thereafter, plaintiffs moved to enter a default and notice of this motion was also given to both Dahl Haskins and Allstate. In sum, no evidence is presented by Allstate, by a person having knowledge of the facts, denying receipt of the summons and complaint which its insured stated under oath was personally delivered to Allstate's representative after service was effectuated.

Notice of plaintiffs intention to enter a default against Allstate was also provided to Allstate and when Allstate did not respond, this matter was set down for an inquest and assessment of damages by order dated, March 6, 2000. The inquest was held on April 25, 2000. The court found that both plaintiffs sustained serious personal injuries and awarded Crystal Haskins the sum of $125,000 together with interest costs and disbursements and plaintiff Mary Haskins the sum of $25,000.00. On February 12, 2001, plaintiffs' counsel, pursuant to courts direction at a conference where the defendant was not present, sent a letter to Allstate advising Allstate's counsel that a default judgment was entered against its insured on March 6th 2000 and requested Allstate to proceed in accordance with the court's direction to move to vacate the default which led to the inquest. Allstate without explanation never moved to vacate their injured default and indeed only after plaintiffs moved for summary judgment has Allstate raised a variety of issues in an effort to extract itself from the judgment now sought to be enforced by plaintiff.

Defendant's further contention that the judgment entered was not properly served with notice of entry is without merit. The cases cited by defendant in support of this contention are misplaced. Metropolitan Life Insurance Company v. McRae 157 Misc 2d 452, 596 N.Y.S.2d 653, cited by Allstate, dealt with the issue whether a...