Marine v. Federal Insurance Co.

293 A.D.2d 721, 741 N.Y.S.2d 427, 2002 N.Y. App. Div. LEXIS 4097

Opinion

—In an action to recover on an insurance policy pursuant to Insurance Law § 3420, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated November 30, 2001, which granted the defendant’s motion to vacate a judgment entered against it upon its default in answering and to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to vacate the judgment entered against it upon its default in answering. To obtain relief pursuant to CPLR 317, the defendant was required to establish that it did not personally receive notice of the summons in time to defend and that it has a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138). The plaintiff effected service upon the defendant in November 2000 by serving a copy of the summons and complaint upon the Superintendent of Insurance (see Insurance Law § 1212). The defendant established that it did not receive actual notice of the summons in time to defend (cf. Nicolosi v Sleuth Sec. Sys., 247 AD2d 521).

Further, the Supreme Court properly dismissed the complaint, as the plaintiff failed to demonstrate compliance with the service requirement of Insurance Law § 3420. Altman, J.P., McGinity, Townes and Crane, JJ., concur.