Opinion
1155/2011.
Decided April 12, 2011.
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
This is an action seeking a default judgment as against defendant for allegedly failing to pay the proceeds of a life insurance policy. This action was commenced upon the filing of the summons and complaint on February 3, 2011. On March 4, 2011, plaintiff served the Superintendent of Insurance pursuant to Insurance Law § 1213. On March 30, 2011, plaintiff brought this motion for a default judgment and served the defendant with this motion on March 30, 2011 by U.S. Mail, which motion was made returnable on April 11, 2011.
This motion is a textbook example of attorneys who fail to properly read and comply with statutes and file motions without due regard for proper procedure.
In the first instance, plaintiff's motion is improperly noticed. CPLR § 2214(b) requires at least 8 days notice of a motion, and when such motion is served by U.S. Mail, an additional five days is added to the required notice (See CPLR § 2103(b)(2), (c)), i.e. 13 days in advance. Plaintiff served the instant motion on March 30, 2011 by U.S. Mail, thereby requiring the minimum time for notice to be April 12, 2011. Plaintiff's motion was noticed for April 11, 2011, one day short of the requisite 13 day period of time based upon plaintiff's counsel's choice of service method. "Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion and deprives the court of jurisdiction to entertain the motion ( see Welch v. State, 261 AD2d 537, 690 N.Y.S.2d 631; Golden v. Golden, 128 AD2d 672, 513 N.Y.S.2d 171; Adames v. New York City Tr. Auth., 126 AD2d 462, 510 N.Y.S.2d 610; Burstin v. Public Serv. Mut. Ins. Co., 98 AD2d 928, 471 N.Y.S.2d 33)." Bianco v Ligreci, 298 AD2d 482 (2nd Dept. 2002). As such plaintiff's motion is jurisdictionally defective and requires that the substance of the motion not even be addressed. If plaintiff's short notice of the motion was not improper enough, plaintiff did not even properly complete service of the initiating papers. Insurance Law § 1213(b) states in pertinent part:
(2) Such service of process upon any such insurer in any such proceeding in any court of competent jurisdiction of this state may be made by serving the superintendent, any deputy superintendent or any salaried employee of the department whom the superintendent designates for such purpose with two copies thereof and the payment to him or her of a fee of forty dollars. The superintendent shall forward a copy of such process by registered or certified mail to the defendant at its last known principal place of business, as designated by the issuer of such process, and shall keep a record of all process so served upon him or her. Such service of process under this paragraph is sufficient, provided notice of such service and a copy of the process are sent within ten days thereafter by or on behalf of the plaintiff to the defendant at its last known principal place of business by registered or certified mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court if there be no clerk, an affidavit of compliance herewith, a copy of the process, and either a return receipt purporting to be signed by the defendant or a person qualified to receive its registered or certified mail in accordance with the rules and customs of the post office department, or, if acceptance was refused by the defendant or its agent, the original envelope bearing a notation by the postal authorities that receipt was refused. Service of process so made shall be deemed made within the territorial jurisdiction of any court in this state.
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(4) The papers referred to in paragraphs two and three of this subsection shall be filed within thirty days after the return receipt or other official proof of delivery, or the original envelope bearing a notation of refusal, is received by the plaintiff. Service of process shall be complete when such process and the accompanying papers are filed pursuant to this section.
(Emphasis supplied). The specific terms of Insurance Law § 1213 require that the plaintiff file not only an affidavit of service of the summons and complaint upon the Superintendent of Insurance, but also requires that a copy of the return receipt or the envelope denoting the refusal of the correspondence with the clerk, a cue that the plaintiff is obligated to independently serve the defendant by certified or registered mail. As stated in Insurance Law § 1213(b)(4), service of process is only complete once the appropriate filings are made. In the instant case, the plaintiff's motion is devoid of any evidence that it separately served the summons and complaint by certified or registered mail, that he received a return receipt card or the mailing returned as undeliverable. As a result of the failure to so demonstrate, the Court is left to find that it was never performed, and therefore service was never properly complete. Plaintiff cannot be moving for a default judgment when there is no evidence that proper service was even completed, commencing the time within which defendant had to answer.
If the aforementioned defects are insufficient, plaintiff's counsel dug into their haversacks of improper legal practice and moved for a default judgment prematurely (assuming that service had even been completed). CPLR § 3012 (c) states in pertinent part: "Additional time to serve answer where summons and complaint not personally delivered to person to be served within the state. If the complaint is served with the summons and the service is made on the defendant by delivering the summons and complaint to an official of the state authorized to receive service in his behalf . . . service of an answer shall be made within thirty days after service is complete." Plaintiff chose Insurance Law § 1213 as the mechanism for service, namely serving the Superintendent of Insurance on behalf of defendant, a company not authorized to sell insurance in New York. Service upon a state official in this situation gives the party 30 days from completion of service to serve its answer. As previously demonstrated, service was never completed, but even if it had, plaintiff served the Superintendent of Insurance on March 4, 2011. That gave defendant until April 4, 2011 to serve its answer. Plaintiff moved for a default judgment on March 30, 2011, 5 days before defendant would have even been obligated to answer assuming service had been complete. Therefore, plaintiff's motion is wholly premature. Adding further to the morass of legal maladroitness is the inadequacy of the "evidentiary" submissions on the substantive motion. CPLR § 3215(f) specifically requires that an affidavit of merit or a verified pleading by one with personal knowledge of the facts be submitted in support of an application for a default judgment. The failure to proffer either device in support of the motion necessitates that the motion be denied with leave to renew upon proper papers. See, Blam v Netcher , 17 AD3d 495, 496 (2nd Dept. 2005); DeVivo v Sparago, 287 AD2d 535, 536 (2nd Dept. 2001). In the instant case, the pleadings are unverified. There is no affidavit of merit by anyone with personal knowledge, and there is not any evidentiary proof of the existence of the insurance policy claimed to be unpaid, copies of any correspondence demanding payment or other proof that there is even a valid underlying claim.
In essence, plaintiff's motion is devoid of any legal or evidentiary support. Plaintiff's motion was untimely and insufficiently noticed. Service itself was never properly completed, thereby tolling defendant's time to answer. Even if service was complete, defendant's time to answer had not elapsed before the motion was even made. Finally, even if plaintiff's counsel did not make any of the aforementioned glaring practice errors, counsel compounded the problems by failing to properly document and support the motion for a default judgment. As such, plaintiff's motion is denied as a matter of law.
The Court notes that conduct is frivolous and can be sanctioned under 22 NYCRR 130-1.1 if it is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or it is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" ( 22 NYCRR 130-1.1[c][1][2]; see Stow v Stow, 262 AD2d 550 (2nd Dept. 1999); Matter of Gordon v Marrone, 202 AD2d 104 (2nd Dept. 1994); Tyree Bros. Envtl. Servs. v Ferguson Propeller, 247 AD2d 376 (2nd Dept. 1998)). "Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another' "( Stow v Stow, supra at 551, quoting 22 NYCRR 130-1.1[c][2]; see also Matter of Gordon v Marrone, supra; Tyree Bros. Envtl. Servs. v Ferguson Propeller, supra). Specifically, Section 130-1.1 of the Rules of the Chief Administrator of the Courts states:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.
As expressed in Park Health Center v Country Wide Ins. Co., 2 Misc 3d 737, 740 (N.Y.City Civ.Ct., 2003):
"In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis for the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." ( Id.) [ 22 NYCRR 130-1.1(c)]
While the factors listed above are precatory in determining sanctionable conduct, "what remedy [to impose] is dictated by considerations of fairness and equity."
( Levy v. Carol Management Corp., 260 AD2d 27, 34, 698 N.Y.S.2d 226 [1st Dept. 1999]). Moreover, "[s]anctions are retributive in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics. citation omitted"( Levy, 260 AD2d at 34, 698 N.Y.S.2d 226). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and prejudice to the adversary. ( See Vicom v. Silverwood, 188 AD2d 1057, 591 N.Y.S.2d 919 [4th Dept. 1992]).
The Court recognizes that counsel may make mistakes from time to time when zealously prosecuting a case on behalf of a party. However, the conduct engaged in here with respect to this motion smacks more of frivolity than it does mere oversight. One practice error can possibly be excused, but the series of four distinct mistakes of basic practice lead this Court to conclude that plaintiff's counsel's motion was submitted purely in an attempt to rush to obtain a judgment rather than ensuring that counsel complied with the statutory mandates imposed upon parties to make certain that a defendant is properly notified of the action and served. Based upon the plethora of practice failures, the conduct itself can be none other than frivolous as courts have defined it.
CPLR 8303-a calls for the award of "costs and reasonable attorney's fees not exceeding ten thousand dollars" against a party, his attorney, or both, who are found to have brought a frivolous action in bad faith or as a means of "harass[ing]" the successful adversary. A similar alternate imposition of costs and financial sanctions is available under the Rules of the Chief Administrator of the Courts for frivolous conduct in pursuit of such litigation (22 NYCRR Subpart 130-1). Once there is a finding of frivolousness, sanction is mandatory ( Grasso v. Mathew, 164 AD2d 476, 564 N.Y.S.2d 576, lv. denied 78 NY2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443), especially in the wake of frivolous defamation litigation ( Mitchell v. Herald Co., 137 AD2d 213, 529 N.Y.S.2d 602, appeal dismissed 72 NY2d 952, 533 N.Y.S.2d 59, 529 N.E.2d 427).
Nyitray v New York Athletic Club in City of New York, 274 AD2d 326, 327 (1st Dept., 2000).
The Court hereby directs that a hearing shall be held on _________________, 2011 at 9:30 a.m. at Orange County Government Center, Courtroom No. 4 for the purposes of taking testimony to ascertain the proper sanctions to be imposed and provide plaintiff's counsel with an opportunity to be heard. Ira S. Lipsius, Esq. shall appear on that date prepared to speak to the issues raised by the Court.
The foregoing constitutes the decision and order of the court.