| Liriano v Eveready Ins. Co. |
| 2009 NY Slip Op 06122 [65 AD3d 524] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Ramon Liriano, Respondent, v Eveready InsuranceCompany, Appellant. |
—[*1] Ramon Liriano, Corona, N.Y., respondent pro se.
In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of anunsatisfied judgment against the defendant's insured, the defendant appeals from (1) an order ofthe Supreme Court, Queens County (Cullen, J.), dated September 29, 2008, which granted theplaintiff's motion for summary judgment on the complaint, and (2) a judgment of the same courtentered November 21, 2008, which, upon the order, is in favor of the plaintiff and against it inthe principal sum of $40,112.06.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the plaintiff's motion for summaryjudgment is denied, and the order dated September 29, 2008, is modified accordingly; and it isfurther,
Ordered that the defendant is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The Supreme Court improperly granted the plaintiff'smotion for summary judgment on the complaint. The plaintiff submitted a process server'saffidavit of service indicating that the defendant was served by mail on August 13, 2007, with adefault judgment against its insured in the underlying action, which constituted prima facieevidence of proper service (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Matter of de Sanchez, 57 AD3d452, 454 [2008]). In response, the defendant came forward with a sworn denial of receiptand an affidavit of an employee with personal knowledge regarding the defendant's regularpractices and procedures in retrieving, opening, and indexing its mail and in maintaining its fileson existing claims. That affidavit indicated that the defendant did not receive the judgment in themail, and instead first learned of it on March 13, 2008, promptly issuing a disclaimer only sixdays later. Under the circumstances of this case, the defendant's submissions sufficed to raise atriable issue of fact regarding the service of the judgment, and the question of whether thedefendant's disclaimer of coverage was timely must await the resolution of that issue (see e.g. Matter of TNT Petroleum, Inc. vSea Petroleum, Inc., 40 AD3d 771 [2007]; Johnson v Deas, 32 AD3d 253 [2006]; First Union Mtge. Corp.v Silverman, 242 AD2d 258 [1997]; Long Is. Sav. Bank v Meliso, 229 AD2d 478[1996]; Poet v Kolenda, 142 AD2d 633 [1988]).
Contrary to the plaintiff's contention and the determination of the Supreme Court, the letterof disclaimer was not defective and, therefore, was not invalid as against the plaintiff. Rather, theletter sent to the plaintiff adequately recited that the defendant was disclaiming coverage as tothe plaintiff on the ground that he failed to provide the defendant with timely notice of theunderlying litigation and with legal papers filed in connection therewith (see American Tr. Ins. Co. v Sartor, 3NY3d 71 [2004]; Matter of GEICOCo. v Wingo, 36 AD3d 908 [2007]; cf. Shell v Fireman's Fund Ins. Co., 17 AD3d 444 [2005]; Vacca v State Farm Ins. Co., 15 AD3d473 [2005]). Mastro, J.P., Covello, Balkin and Austin, JJ., concur.