| Lema v New York Cent. Mut. Fire Ins. Co. |
| 2013 NY Slip Op 08598 [112 AD3d 891] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Angel S. Lema, Appellant, v New York CentralMutual Fire Insurance Company, Respondent. |
—[*1] Votto & Albee, PLLC, Staten Island, N.Y. (Christopher J. Albee of counsel), forrespondent.
In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount ofan unsatisfied judgment against the defendant's insureds, the plaintiff appeals from anorder of the Supreme Court, Kings County (Rothenberg, J.), dated January 24, 2013,which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a) and denied his cross motion for leave to enter a default judgment.
Ordered that the order is reversed, on the law, with costs, the defendant's motion isdenied, the plaintiff's cross motion is granted, and the matter is remitted to the SupremeCourt, Kings County, for the entry of an appropriate judgment in the plaintiff's favor.
On November 10, 2005, the plaintiff was involved in an automobile accident with avehicle insured by the defendant insurance carrier. The plaintiff commenced an actionagainst the defendant's insureds in the Civil Court of the City of New York, QueensCounty. On June 5, 2009, the plaintiff secured a judgment in the sum of $33,396.03,constituting the principal sum of $25,000, plus interest, against the defendant's insureds(hereinafter the underlying judgment).
This is the second of two actions commenced by the plaintiff pursuant to InsuranceLaw § 3420 (a) (2) to recover the proceeds of the underlying judgment against thedefendant's insureds. In the first action, commenced under index No. 25229/09, theSupreme Court denied the plaintiff's motion for summary judgment on the complaint onthe ground that the underlying judgment was "not properly served" upon the insurancecarrier.
However, while that action was pending, the plaintiff's attorney, on November 17,2010, re-served the defendant with a copy of the underlying judgment against theinsureds. That prior action was dismissed when the parties failed to appear at acompliance conference, whereupon the plaintiff commenced the instant action underindex No. 14325/12. The complaint in the instant action alleged that the underlyingjudgment was served upon the defendant, 30 days had elapsed, and the judgmentremained unsatisfied. After the time to answer had lapsed, the defendant moved, interalia, to dismiss the complaint pursuant to CPLR 3211 (a) (4) on the ground that there wasanother [*2]action pending for the same relief. Since themotion was made after the time to answer had lapsed, and no answer had been served,the plaintiff cross-moved for leave to enter a default judgment. In the order appealedfrom, the Supreme Court granted the defendant's motion and denied the plaintiff's crossmotion, on the ground that "this action is duplicative of a previous, currently pendingmatter."
The defendant's motion to dismiss the complaint in this action was untimely, since itwas made after the time to file an answer had lapsed (see CPLR 3211 [e]; Bennett v Hucke, 64 AD3d529, 530 [2009]; Moxson v United Airlines, 282 AD2d 725, 727 [2001]),and therefore should have been denied. In any event, "[t]he dismissal of a prior actionbetween the same parties for failure to prosecute is not a dismissal on the merits and doesnot bar a second action based upon the same facts unless the order specifies otherwise"(Mays v Whitfield, 282 AD2d 721, 721-722 [2001]; see Morales v New YorkCity Hous. Auth., 302 AD2d 571 [2003]).
The defendant failed to establish a reasonable excuse for its default. Moreover,because the underlying judgment was re-served upon the defendant, the defendant couldnot establish a potentially meritorious defense to the instant action (see CPLR5015 [a] [1]; Alejandro vLiberty Mut. Ins. Co., 84 AD3d 1132 [2011]). Accordingly, the plaintiff's crossmotion for leave to enter a default judgment should have been granted.
The defendant's remaining contentions are without merit, or need not be addressed inlight of our determination. Skelos, J.P., Balkin, Lott and Hinds-Radix, JJ., concur.