Opinion
2005-654 KC.
Decided July 7, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ann E. O'Shea, J.), entered January 6, 2005. The order denied plaintiff's motion for a nunc pro tunc order permitting him to sue defendant Motor Vehicle Accident Indemnification Corporation.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
On February 23, 1995, plaintiff, a pedestrian, was injured when he was struck by an automobile owned by defendant Ivor Johnson. On or about February 18, 1998, plaintiff commenced this action in the Supreme Court, Kings County against Johnson and the Motor Vehicle Accident Indemnification Corporation (MVAIC). By order to show cause dated February 20, 1998, plaintiff sought permission, as required by Insurance Law § 5218, to sue MVAIC. Although plaintiff's counsel claims this motion was granted, counsel has never produced a copy of an order granting the motion. Nevertheless, it appears that on February 25, 1998, the Supreme Court orally granted plaintiff's motion and directed that an order be settled on notice.
Thereafter, by letter dated November 10, 1998, plaintiff's counsel asked MVAIC to interpose an answer to avoid unnecessary motion practice. In a responsive letter dated November 15, 1998, MVAIC advised plaintiff's counsel that MVAIC would not serve an answer without a signed order granting plaintiff permission to sue MVAIC. On May 6, 1999, the action was transferred to the Civil Court pursuant to CPLR 325 (d). In an order entered September 4, 2001, the complaint was dismissed insofar as asserted against Johnson because his automobile had been stolen and, at the time of the accident, was being driven by someone without his consent. By notice of motion dated September 9, 2003, plaintiff made the first in a series of motions seeking a default judgment against MVAIC. Although plaintiff's counsel and former counsel submitted affirmations in which, as noted above, they averred that, on February 25, 1998, a Justice of the Supreme Court, Kings County had granted plaintiff's motion for permission to sue MVAIC, each of the motions for the entry of a default judgment was denied due to plaintiff's failure to produce a copy of an order granting plaintiff permission to sue MVAIC. Plaintiff's final motion, the subject of this appeal, seeking a nunc pro tunc order granting him permission to sue MVAIC was denied due to plaintiff's failure to produce any evidence in admissible form demonstrating that he was previously granted permission to sue MVAIC and due, in part, to inconsistencies between the affirmations submitted by plaintiff's current and former counsel.
Although MVAIC advised plaintiff's counsel on or about November 15, 1998 that it would not serve an answer unless plaintiff provided defendant with a copy of a signed order permitting plaintiff to sue MVAIC, plaintiff did not provide MVAIC with a copy of such an order, nor apparently did plaintiff seek one nunc pro tunc until July 22, 2004. Determination of a motion for nunc pro tunc relief is discretionary with the motion court ( see Matter of Smith v. Motor Veh. Acc. Indem. Corp., 299 AD2d 554; Meany v. Supermarkets Gen. Corp., 239 AD2d 393). We note that the failure to submit an order for signature within 60 days "shall be deemed an abandonment of the motion or action, unless for good cause shown" ( 22 NYCRR 202.48 [a], [b] [emphasis added]). In the circumstances presented, the Civil Court providently exercised its discretion when it denied plaintiff's motion for a nunc pro tunc order permitting him to sue MVAIC ( see Insurance Law § 5218; 22 NYCRR 202.48 [a], [b]; Meany, 239 AD2d at 394).
Pesce, P.J., Weston Patterson and Golia, JJ., concur.