The following papers read on this motion: Notice of Motion and Affidavits X Order to Show Cause X Affirmation in Opposition X Reply Affirmation X Motion by the defendant/third-party plaintiff George Ferguson for an order pursuant to CPLR 3212 granting summary judgment in his favor dismissing the plaintiff/third-party defendant Mapfre Insurance Company of New York’s (hereinafter “Mapfre”) complaint, as well as granting summary judgment on his counterclaim in the sum of $100,000.00 plus interest as against Mapfre (Motion Sequence No. 2). The plaintiff moves, by way of Order to Show Cause, for an order granting leave to amend its complaint (Motion Sequence No. 3). The parties submit respective opposition papers. The defendant/third-party plaintiff submits a reply affirmation. Mapfre initiated this action for a judgment declaring that it is not obligated to provide insurance coverage stemming from a judgment awarded to Mr. Ferguson as against Mr. Ruggero, who was insured by Mapfre. Mapfre alleges that it does not have to cover the instant judgment because Mr. Ruggero failed to provide Mapfre with a copy of the summons and complaint for his action against Mr. Ferguson. Mapfre additionally seeks to amend its complaint in order to include allegations reflecting that it first received notice on September 18, 2018 of the lawsuit which had been commenced on November 22, 2016, and for which judgment in the amount of $151,200.00 had been entered on August 9, 2018. In support of his motion, Mr. Ferguson submits a copy of the judgment entered August 9, 2018, as well as a copy of the disclaimer provided by Mapfre. Of note, the disclaimer acknowledges that counsel for Mr. Ferguson initially reported the December 8, 2015 accident on January 4, 2016. Mr. Ferguson argues that Mapfre’s disclaimer is invalid under Insurance Law 3420(a), as it impermissibly denies coverage based solely on Mr. Ruggero’s failure to provide a copy of the summons and complaint. In opposition, Mapfre argues that the disclaimer need not address the failure of the injured party to provide a copy of the summons and complaint, and is therefore valid. The pertinent facts of this case are identical to those of Vacca v. State Farm Ins. Co. (15 A.D.3d 473). In Vacca, the injured party independently furnished notice of his accident to the liability insurer of the offending vehicle. Mr. Vacca thereafter commenced an action to recover damages for personal injuries and was awarded a default judgment. The insurance company then disclaimed coverage based on the failure of the insureds to forward the summons and complaint or any subsequent legal documentation, but failed to cite Mr. Vacca’s failure to provide timely notice of the action. The Second Department held that, to the extent it was based solely on the inaction of its own insureds, the disclaimer did not affect Mr. Vacca’s independent rights, noting that Mr. Vacca had furnished notice of his accident shortly after the occurrence. Here, as in Vacca, Mr. Ferguson is an injured party who furnished notice shortly after the occurrence, then commenced an action which resulted in a default judgment. As such, Mr. Ferguson has met his burden for summary judgment with regard to Mapfre’s complaint as well as his counterclaims (Id; see also Hazen v. Otsego Mut. Fire Ins. Co., 286 A.D.2d 708). In opposition, Mapfre argues that Mr. Ferguson chose not to exercise his statutory rights by perfecting his default judgment and allowing the time to appeal to lapse before providing Mapfre with a copy of the summons and complaint. However, the cases upon which Mapfre relies do not address circumstances in which a party fails to provide a copy of the summons and complaint. Rather, Mapfre’s cases note the importance of providing notice of a “potential claim” within a reasonable time, as insurance companies were prejudiced due to not being informed of the occurrence of accidents (see Travelers Indem. Co. v. Worthy, 281 A.D.2d 411; see also First Cent. Ins. Co. v. Malave, 3 A.D.3d 494). As Mr. Ferguson had provided timely notice of the potential claim, and as Mapfre’s disclaimer makes no mention of Mr. Ferguson’s failure to provide a copy of the summons and complaint, Mapfre is now estopped from raising Mr. Ferguson’s allegedly late notice of the lawsuit as a ground for disclaiming coverage (see Hazen, supra). Mr. Ferguson is therefore entitled to a judgment in the principal sum of $100,000.00, the applicable limit of the subject policy (see Vacca, supra; see also Insurance Law §3420[a][2]). In light of the foregoing, it is hereby ORDERED that the defendant/third-party plaintiff’s motion for summary judgment is granted, and it is further ORDERED that the plaintiff/third-party defendant’s motion for leave to amend is denied as moot, and it is further ORDERED that the plaintiff is hereby directed to Settle Judgment on Notice. A copy of this order with notice of entry shall accompany the proposed order. Dated: January 30, 2020
