Opinion
Index No. CV-001926-21/QU
04-08-2022
STATE FARM INDEMNITY CO. ASO Castillo, Plaintiff(s), v. KARIM and Samy, Defendant(s). Karim and Samy, Third Party Plaintiff(s), v. Matute, Third Party Defendant(s).
Plaintiff's counsel: Serpe, Andree & Kaufman, 149 Main Street, P.O. Box 165, Huntington, NY 11743 Defendant's counsel: Martyn, Martyn, Smith, Murray and Yong, Esqs, 330 Old Country Road, Suite 211, Mineola, NY 11501
Plaintiff's counsel: Serpe, Andree & Kaufman, 149 Main Street, P.O. Box 165, Huntington, NY 11743
Defendant's counsel: Martyn, Martyn, Smith, Murray and Yong, Esqs, 330 Old Country Road, Suite 211, Mineola, NY 11501
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant-Third Party Plaintiffs’ motion for a default judgment:
Papers/Numbered
Defendant-Third Party Plaintiffs’ Notice of Motion and Affirmation in Support dated October 28, 2021 ("Motion ") and stamped filed by the court on November 16, 2021. 1
II. Background
In a summons and complaint filed January 22, 2021, Plaintiff insurance company sued Defendants to recover $2,679.42 in property damage to a motor vehicle registered to Plaintiff's subrogor Castillo, caused in a collision with a vehicle owned, operated or controlled by Defendants (see Motion, Aff. of Fugelsang, Ex. A). Defendants commenced a third-party action against Third Party Defendant in a third-party summons and complaint dated March 18, 2021 (see Motion, Fugelsang Aff., Ex. B). After third party Defendant failed to answer, Defendants-Third Party Plaintiffs moved for a default judgment ( CPLR 3215[a] ). Neither Plaintiff nor Third Party Defendant opposed the Motion.
III. Discussion and Decision
Third Party Plaintiffs may seek a default judgment against Third Party Defendant if he fails to plead ( CPLR 3215[a] ). Third Party Plaintiffs must support their Motion for a default judgment with proof of (1) service of the third-party summons and complaint, (2) the facts constituting the claim, and (3) Defendant's default ( CPLR 3215[f] ; Board of Mgrs. of Harborview Condominium v Goodman , 189 AD3d 1529, 1530 [2d Dept 2020] ; Capital One, N.A. v Gokhberg , 189 AD3d 978, 979 [2d Dept 2020] ; Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C. , 170 AD3d 1125, 1126 [2d Dept 2019] ; Global Liberty Ins. Co. v Joseph Gorum, M.D., P.C. , 143 AD3d 768, 769 [2d Dept 2016] ). Here, Defendants-Third Party Plaintiffs presented the affidavit of service sworn April 12, 2021, which indicated that the third-party summons and complaint were served on Third Party Defendant by service at his residence upon a person of suitable age and discretion (see CPLR 308[2] ). However, Third Party Plaintiffs presented no affidavit of facts constituting their claims against Third Party Defendant. Here, Third Party Plaintiffs failed to satisfy the requirements of CPLR 3215(f), which requires denial of their motion for default judgment. ( First Franklin Fin. Corp. v Alfau , 157 AD3d 863, 865 [2d Dept 2018] ; DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co. , 128 AD3d 760, 762 [2d Dept 2015].)
IV. Order
Accordingly, it is
ORDERED that Defendant-Third Party Plaintiffs’ Motion for default judgment is denied
This constitutes the DECISION and ORDER of the Court.