Unitrin is now followed in the Fourth DepartmentJune 21, 2015
Interboro Ins. Co. v Tahir, 2015 NY Slip Op 05378 (4th Dept. 2015)
LAW OFFICE OF JASON TENENBAUM, P.C., GARDEN CITY (JASON TENENBAUM OF COUNSEL), FOR PLAINTIFF-APPELLANT.
“Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC (Kimba). Defendants Naz and Fatima Tahir made claims for no-fault benefits arising from injuries they allegedly sustained in an automobile accident covered by an insurance policy issued to plaintiff’s policyholder. Naz and Tahir assigned their rights to collect no-fault benefits to certain medical providers, including Cliffside and Kimba, each of which made claims for services rendered to Naz and Tahir as a result of the alleged accident. Plaintiff disclaimed coverage based on the failure of Naz and Tahir to provide timely written notice of the accident pursuant to the insurance policy, and thereafter commenced this action seeking a declaration that there is no coverage. Plaintiff subsequently moved for leave to enter a default judgment against each defendant on the ground that the summons and verified complaint had been properly served and defendants did not timely serve an answer or otherwise appear in the action. Supreme Court denied the motion with respect to Naz, Cliffside, and Kimba, and otherwise granted the motion.”
Here, plaintiff submitted sufficient proof of the facts constituting its claim through the affidavit of a claims representative establishing that Tahir and Naz failed to satisfy the notice requirement of the insurance policy, which constitutes a failure to comply with a condition precedent and vitiates the contract as a matter of law (see generally New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592-593; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743; Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322). Plaintiff also submitted proof of default in the form of “an affirmation from its attorney regarding . . . defendant[s’] default in appearing and answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726, 726).