Metro. Grp. Prop. & Cas. Ins. Co. v. Wellington

• Decision Date: 30 October 2013
• Citation: 2013 N.Y. Slip Op. 23371,42 Misc.3d 270,975 N.Y.S.2d 617
• Court: New York District Court
• Parties: METROPOLITAN GROUP PROPERTY & CASUALTY INSURANCE COMPANY a/s/o Marva & Swinston Harrigan, Plaintiff(s), v. John WELLINGTON & Marie Pierre–Canel, Defendant(s).

42 Misc.3d 270

975 N.Y.S.2d 617

2013 N.Y. Slip Op. 23371

METROPOLITAN GROUP PROPERTY & CASUALTY INSURANCE COMPANY a/s/o Marva & Swinston Harrigan, Plaintiff(s),

v.John WELLINGTON & Marie Pierre–Canel, Defendant(s).

District Court, Nassau County, New York. First District.

Oct. 30, 2013.

Allen D. Werter, Esq., Huntington, for Plaintiff.

John Wellington and Marie Pierre–Canel, Defendants pro se.

MICHAEL A. CIAFFA, J.

This action by the insurer of a damaged auto involves facts and circumstances which defy easy analysis. A slim set of motion papers seeks a default judgment against defendants. The papers end up presenting complexities not apparent from the face of the moving papers. In the decision that follows, the Court issues rulings on the matter which wade through a series of difficult jurisdictional issues and novel legal questions. Finally addressing the merits of the motion, the Court concludes that plaintiff's proof of claim is deficient, requiring denial of the motion.

Background Facts

According to the moving papers, plaintiff, Metropolitan Group Property & Casualty Insurance Company, insured a motor vehicle that was owned by its subrogors, Marva and Swinston Harrigan. On January 23, 2012, the vehicle was damaged in a collision that took place in Freeport, New York. Following payment of a claim made by its insureds, plaintiff brought suit against the driver and the owner of a second vehicle. An amended complaint alleges “upon information and belief” that the collision “resulted solely from the negligence and carelessness of defendant, Marie Pierre–Canel in the operation and control of said motor vehicle owned by [defendant] John Wellington.”

The owner, defendant Wellington, was served with the lawsuit at his dwelling in Brooklyn, New York, through delivery of the summons and complaint to a person of suitable age and discretion. SeeCPLR 308(2). The driver, defendant Pierre–Canel, was served at her dwelling in Wyandanch, New York, through “nail and mail” service. SeeCPLR 308(4). Neither defendant served or filed an answer to the complaint within the time allowed by law. SeeUDCA 402(b).

Plaintiff's Motion

Within one year of defendants' default, plaintiff filed a timely motion for a default judgment against defendants, seeCPLR 3215(c), seeking judgment in the principal amount of $12,809.25, plus interest from the date of the accident. The motion was submitted, unopposed, without defendants ever appearing.

Discussion

As this Court has previously noted, “it is tempting to simply grant [an unopposed default judgment application] and move on to other pressing matters.” Utica Mutual Ins. Co. v. Lynton, 31 Misc.3d 804, 806, 918 N.Y.S.2d 332 (Dist. Ct. Nassau Co.2011). “However, the rule of law ... demands more.” Id. “The Court's duty is not ministerial.” Id., citing McGee v. Dunn, 75 A.D.3d 624, 906 N.Y.S.2d 74 (2d Dept. 2010). A plaintiff cannot properly obtain a default judgment unless and until it submits the required proof. SeeCPLR 3215(f).

Upon close examination of plaintiff's moving papers, it appears that plaintiff's application presents a series of complex procedural and substantive issues which require careful analysis. First and foremost, District Courts are courts of limited jurisdiction. Although this Court's subject matter jurisdiction over plaintiff's action “is not open to question,” see Philadelphia Indemnity Ins. Co. v. Goggins–Starr, 30 Misc.3d 459, 461, 913 N.Y.S.2d 878 (Dist. Ct. Nassau Co.2010), “the Court's exercise of personal jurisdiction over defendants hinges on its long arm' powers under UDCA 404(a), and general jurisdictional principles.” Id. at 462, 913 N.Y.S.2d 878.¹ Pursuant to that section, a District Court “may exercise a personal jurisdiction over any non-resident of the county” only with respect to causes of action which arose from acts within the county, “in person or through an agent,” involving the transaction of business in the county; the commission of a tortious act within the county; or the ownership, use or possession of real property situated within the county. UDCA 404(a).

In the instant case, the complaint, on its face, appears to allege the commission of such a tortious act by defendant Pierre–Canel in Freeport, New York, which is within the County of Nassau ( see plaintiff's complaint, ¶¶ 4–7). However, the complaint does not allege that defendant Wellington, personally, committed such a tortious act in Nassau County. Nor does it allege that Pierre–Canel was Wellington's “agent” when the accident took place. Rather, the sole ground for suing Wellington is his status as the owner the vehicle that Pierre–Canel was driving. SeeVTL 388(1) (“Every owner of a vehicle used and operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner”).

In circumstances like these, does the plaintiff have to plead and/or prove the legal basis for asserting long-arm personal jurisdiction against the defendant Wellington in order to obtain a default judgment against him? Surprisingly, current caselaw provides no clear answer to the question.

More than 40 years ago, when Judge Niehoff decided Coffman v. National Union Fire Ins. Co., 60 Misc.2d 81, 302 N.Y.S.2d 480 (Dist. Ct. Nassau Co.1969), the caselaw at that time set forth a bright line rule: “ Under present law one seeking to invoke the in personam jurisdiction of this court with respect to a nonresident must expressly allege in the complaint the facts bringing the nonresident with the UDCA's provisions for personal jurisdiction by acts of nonresidents.” 60 Misc.2d at 84.

When Judge Hirsh of this Court examined the issue anew in 2002, he concluded that Coffman's holding on this point was no longer good law. See Shaw, Licitra, et al. v. Lefkowitz, 2002 N.Y. Slip Op. 50329, 2002 WL 1969237 (Dist. Ct. Nassau Co.). As explained in Judge Hirsh's decision:

Fishman v. Pocono Ski Rental, Inc., 82 A.D.2d 906, 440 N.Y.S.2d 700 (2d Dept. 1981), specifically held there is no requirement to plead “long arm” jurisdictional facts in the complaint.... This Court must follow the applicable decisions of the Appellate Division for the Second Department ... To the extent that Coffman, supra, holds that a party seeking to assert jurisdiction over a non-resident must plead “long arm” jurisdictional facts in the complaint, this court concludes that it is no longer states “the present state of the law” and declines to follow it.

The following year, in 2003, the Appellate Term weighed in once again. See Manfre v. Abrams, 196 Misc.2d 631, 763 N.Y.S.2d 198 (App. Term, 2d Dept. 2003). Without discussing or citing to Judge Hirsh's decision in Shaw, Licitra, the Appellate Term followed Coffman, holding that in District Court cases involving service of process outside of the District Court's “limited territorial jurisdiction,” “the basis for personal jurisdiction must be alleged in the pleadings.” Id. at 632, 763 N.Y.S.2d 198.

Four years thereafter, in June 2007, the Appellate Term followed Manfre in affirming the denial of a Suffolk County District Court motion to enter a default judgment against defendants who “reside outside the District Court's jurisdiction.” See Young v. American Office Interiors, Inc., 215 Misc.3d 144(A), 007 N.Y. Slip Op. 51162, 2007 WL 1662116 (App. Term 2d Dept.). The Court's brief decision explained: “the complaint does not specifically allege facts establishing that the acts and omissions complained of took place within Suffolk County” ( citingUDCA 404 and Manfre v. Abrams,supra ).

Within six months of the latter ruling, the Court of Appeals handed down an important decision which broadly addressed the pleading and proof required in a long-arm case filed in the Supreme Court. Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22 (2007). The principal question in that case was whether non-residents of the state who had retained a New York attorney had “transacted business” in New York, sufficient to subject them to “long arm jurisdiction” under CPLR 302(a)(1). In affirming lower court rulings that sustained jurisdiction based upon evidence submitted by the plaintiff, the Court held that “[t]he quality of defendants' contacts here establishes a transaction of business in New York.” Id. at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22.

The Court went on to address a second question, namely, whether the plaintiff had to allege the basis for long arm jurisdiction in the complaint. Because plaintiff's complaint “recited no specific statutory basis for personal jurisdiction over defendants,” the defendants claimed the complaint was “subject to dismissal because it failed to allege a basis for personal jurisdiction.” Id. at 379, 381 fn. 5, 849 N.Y.S.2d 501, 880 N.E.2d 22. The Court of Appeals emphatically held: “Defendants are wrong.” Id. at 381 fn. 5, 849 N.Y.S.2d 501, 880 N.E.2d 22. Quoting from Vincent C. Alexander's Practice Commentaries to McKinney's CPLR 302 (at C302:5), the Court noted the absence of such a requirement in the CPLR's “rules of pleading.” Rather, “[i]f the defendant moves to dismiss due to the absence of a basis of personal jurisdiction, the plaintiff must come forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction.” Fischbarg v. Doucet, supra, quoting Vincent C. Alexander's Practice Commentary, supra. “This is precisely what occurred here.” Id. at 381 fn. 5, 849 N.Y.S.2d 501, 880 N.E.2d 22.

Based upon the Court of Appeals' decision in Fischbarg v. Doucet, this Court now holds that a District Court complaint need not plead a factual basis for asserting personal jurisdiction over a defendant who resides outside of Nassau County. Although the decision in Fischbarg involved the assertion of long arm...