Opinion
2003-320 Q C.
Decided February 26, 2004.
Appeal by plaintiff from an order of the Civil Court, Queens County (K. Kerrigan, J.), entered January 17, 2003, which denied his motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Order unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
This action was commenced by plaintiff against defendant insurer, pursuant to Insurance Law § 3420 (a) (2), to recover on an unsatisfied judgment in the amount of $25,000, which plaintiff had obtained in an underlying action against defendant's insureds for personal injuries allegedly sustained in a motor vehicle accident. The judgment was entered following the insureds' default in the underlying action. After commencement of this direct action against the insurer, plaintiff sought summary judgment, and defendant cross-moved for summary judgment on the ground that the underlying judgment was void. The court below granted defendant's cross motion and dismissed the complaint.
In order to maintain a direct action against an insurer, there must be a valid and enforceable judgment in the underlying action ( see Hernandez v. Amer. Tr. Ins. Co., — AD2d — [2d Dept, Dec. 15, 2003]; Braddy v. Allcity Ins. Co., 282 AD2d 637). A judgment rendered without jurisdiction is a nullity and is subject to collateral attack ( see Royal Zenith Corp. v. Continental Ins. Co., 63 NY2d 975; Vaccarino v. Allstate Ins. Co., 270 AD2d 411).
With respect to the corporate defendant in the underlying action, Full Moon Hacking Corp., entry of judgment had been stayed by the court pending proof of compliance with CPLR 3215 (g) (4), which required plaintiff, who had served that defendant pursuant to the provisions of Business Corporation Law § 306, to submit proof that an additional mailing had been made to the corporate defendant at its last known address. Plaintiff failed to submit any valid proof of service, with the exception of an unsigned yet notarized affidavit of service which is of no effect. As the court below correctly noted, since plaintiff failed to demonstrate that he complied with the provisions of CPLR 3215 (g) (4), the stay was still in effect and the judgment was erroneously entered. Inasmuch as there was no valid judgment to be satisfied as against the corporate defendant, plaintiff may not recover on the unsatisfied judgment in the underlying action insofar as it was entered against the corporate defendant, Full Moon Hacking Corp., since a condition precedent to the maintenance of said action, pursuant to CPLR 3420 (a) (2), is lacking ( see Braddy v. Allcity Ins. Co., 282 AD2d 637, supra).
As to the individual defendant in the underlying action, Mohammed Z.H. Khan, we agree with the finding of the court below that plaintiff failed to effect proper service over him in the underlying action, thereby rendering the underlying judgment invalid as to him for lack of jurisdiction. In our opinion, the evidence presented by the defendant herein in opposition to plaintiff's motion for summary judgment and in support of its cross motion for summary judgment established that service pursuant to CPLR 308 (4) was deficient as a matter of law ( see Gurevitch v. Goodman, 269 AD2d 355; Jones v. King, 24 AD2d 430). Inasmuch as personal jurisdiction over Mr. Khan was not obtained in the underlying action, the judgment entered upon his default therein is a nullity ( see Vaccarino v. Allstate Ins. Co., 270 AD2d 411, supra), and plaintiff, therefore, may not recover upon the unsatisfied judgment in this direct action against the insurer.