Kircher v. William Penn Life Ins. Co. of N.Y., 2017–06091
| Decision Date | 31 October 2018 |
| Docket Number | Index No. 606361/16,2017–06091 |
| Citation | 85 N.Y.S.3d 579,165 A.D.3d 1241 |
| Parties | Michele KIRCHER, etc., Appellant, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
165 A.D.3d 1241
85 N.Y.S.3d 579
Michele KIRCHER, etc., Appellant,
v.
WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Respondent.
2017–06091
Index No. 606361/16
Supreme Court, Appellate Division, Second Department, New York.
Argued - May 18, 2018
October 31, 2018
Gisonni Law Firm, P.C., Huntington, N.Y. (Eve–Lynn Gisonni of counsel), for appellant.
Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Robert D. Meade of counsel), for respondent.
SHERI S. ROMAN, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action, inter alia, to recover the proceeds of a life insurance policy, the plaintiff appeals from an order of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated May 1, 2017. The order denied the plaintiff's motion for leave to enter a default judgment against the defendant upon its failure to appear or answer the complaint.
ORDERED that the order is affirmed, with costs.
In March 2013, the plaintiff's husband obtained a life insurance policy from the defendant naming the plaintiff as the primary beneficiary. The plaintiff's husband died in June 2013, and the plaintiff made a claim for the proceeds of the policy. The defendant denied the claim on the ground that the decedent did not comply with the terms of the policy application by failing to inform the defendant of changes in his health while his application was pending. In April 2016, the plaintiff commenced this action, inter alia, to recover the proceeds of the policy. Thereafter, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon its failure to appear or answer the complaint. The defendant opposed the motion. In the order appealed from, the Supreme Court denied the plaintiff's motion on the ground that the defendant did not receive proper service of the summons and complaint. We affirm, albeit on a different ground than that relied upon by the Supreme Court.
"On a motion for leave to enter judgment against a defendant for the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant's default" ( Triangle Props. # 2, LLC v. Narang, 73 A.D.3d 1030, 1032, 903 N.Y.S.2d 424 ; see CPLR 3215[f]...
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