Opinion
2003-05822.
Decided December 15, 2003.
In an action pursuant to Insurance Law § 3420(a)(2) to recover on two unsatisfied judgments entered against the defendant's insureds, the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Hart, J.), dated June 10, 2003, as denied their motion for summary judgment on the issue of liability.
Jose R. Mendez, P.C., Rego Park, N.Y., for appellants.
Marjorie E. Bornes, New York, N.Y., for respondent.
Before: ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action pursuant to Insurance Law § 3420(a)(2) to recover on two unsatisfied judgments they obtained against the defendant's insureds on default. In its answer, the defendant asserted that the judgments in the underlying action were void and unenforceable.
A valid and enforceable judgment is a condition precedent to maintaining an action pursuant to Insurance Law § 3420(a)(2) ( see Braddy v. Allcity Ins. Co., 282 A.D.2d 637). A judgment entered through fraud, misrepresentation, or other misconduct practiced on the court is a nullity and is subject to collateral attack ( see Sirota v. Kloogman, 140 A.D.2d 426; Shaw v. Shaw, 97 A.D.2d 403). The evidence presented by the defendant in opposition to the plaintiffs' motion for summary judgment was sufficient to raise a triable issue of fact as to whether the plaintiffs had a basis upon which to enter the judgments. Accordingly, the plaintiffs' motion for summary judgment was properly denied.
SANTUCCI, J.P., GOLDSTEIN, SCHMIDT and COZIER, JJ., concur.