Tuesday, May 13, 2008

Proving an Insurance Law § 3420(a)(2) Claim

Lopez v. State Farm Fire & Cas. Co.
(2nd Dept., decided 5/6/2008)

New York Insurance Law § 3420(a)(2) permits an injured party to sue the insurer of the tortfeasor insured once the injured party has obtained a money judgment against her that remains unsatisifed for at least 30 days after presentment to the insurer.

In this case, the Second Department AFFIRMED the lower court's denial of summary judgment to the plaintiffs based on their failure to establish their prima facie entitlement to summary judgment on their complaint pursuant to Insurance Law § 3420(a)(2):

Here, the plaintiffs proffered no evidence that they notified the defendant of the underlying action they commenced against the defendant's purported insured and in which a default judgment was entered, until the defendant was served in the instant action (citations omitted). In addition, the plaintiffs' only submission, on their motion for summary judgment on the complaint, to establish that there was in full force and effect an agreement of insurance covering them for the liability, was a letter from the defendant to them requesting information regarding a claim (see Kleynshvag v GAN Ins. Co., 21 AD3d 999). That letter indicated that the defendant was making a second request to the plaintiffs to provide certain documentation regarding the plaintiffs' claim referenced therein "[i]n order to properly analyze and evaluate" the claim. Such letter, without more, failed to establish, prima facie, the existence of a valid policy of insurance covering the accident.

* * * The plaintiffs' failure to meet their initial burden on the motion necessitated its denial regardless of the sufficiency of the opposing papers.

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