Vogt v. Eberhardt

• Decision Date: 25 July 2018
• Docket Number: 827,17–00065
• Citation: 163 A.D.3d 1514,81 N.Y.S.3d 844
• Parties: Richard G. VOGT, Individually and as Executor of the Estate of Linda Vogt, Deceased, Plaintiff–Appellant, v. William B. EBERHARDT, Jr., and Julia A. Bergan, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1514
81 N.Y.S.3d 844

Richard G. VOGT, Individually and as Executor of the Estate of Linda Vogt, Deceased, Plaintiff–Appellant,
v.
William B. EBERHARDT, Jr., and Julia A. Bergan, Defendants–Respondents.

827
17–00065

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 25, 2018

MICHAEL A. ROSENHOUSE, ROCHESTER, FOR PLAINTIFF–APPELLANT.

GOLDBERG SEGALLA LLP, ROCHESTER (RAUL E. MARTINEZ OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff and Linda Vogt, now deceased, commenced this action

81 N.Y.S.3d 845

seeking damages for injuries sustained by Vogt when she fell after she caught the heel of her shoe in the track of a sliding glass door at the Sherwood Inn (Inn) in September 2012. The Inn is owned and operated by defendant William B. Eberhardt, Jr., and defendant Julia A. Bergan is an employee of the Inn.

In August 2014, plaintiff and Vogt commenced an action (first action) against Dining Associates, Inc., doing business as Sherwood Inn (Dining Associates), alleging that Vogt's injuries resulted from the negligence of Dining Associates. Eberhardt, who is also the owner of Dining Associates, forwarded the summons and complaint to the insurance carrier for the Inn, Nationwide Insurance Company (Nationwide), and Nationwide assigned counsel to defend Dining Associates in the first action. In September 2015, after plaintiff and Vogt learned that the Inn was not owned by Dining Associates, they commenced the instant action against defendants. Defendants forwarded the summons and complaint to Nationwide, just as Eberhardt had done in the first action. Nationwide received the documents and did not deny coverage to defendants, but Nationwide failed to assign counsel to represent defendants. Defendants subsequently defaulted in the instant action, and Supreme Court granted the motion of plaintiff and Vogt for a default judgment...