Braddy v. Allcity Insurance

282 A.D.2d 637, 723 N.Y.S.2d 690, 2001 N.Y. App. Div. LEXIS 3991

Opinion

—In an action pursuant to Insurance Law § 3420 to recover an unsatisfied judgment against the defendant’s insured, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal from an order of the Supreme Court, Kings County (Belen, J.), entered May 2, 2000, which granted the defendant’s motion to vacate an order of the same court dated March 2, 2000, entered upon the defendant’s default in answering.

Ordered that the order is affirmed, with costs.

The background facts of this matter are set forth in Braddy v 601 Crown St. Corp. (282 AD2d 638 [decided herewith]). The plaintiffs commenced this action pursuant to Insurance Law § 3420 by motion for summary judgment in lieu of complaint (see, CPLR 3213) after their judgment against the defendant’s insured, obtained on default, remained unsatisfied for more than 30 days. The defendant subsequently moved pursuant to CPLR 5015 to vacate the order.

A valid and enforceable judgment is a condition precedent to maintaining an action pursuant to Insurance Law § 3420 (a) (2). Since the judgment entered against the defendant’s insured upon its default in answering was properly vacated (see, Braddy v 601 Crown St. Corp., supra), the order which is the subject of this appeal likewise was properly vacated (see, CPLR 5015 [a] [5]). Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.