LA MAINA v. (and a third-party action). (2006)

In an action to recover damages for personal injuries, etc., National Union Fire Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered August 22, 2003, as denied its motion pursuant to CPLR 5015(a) to vacate a prior order of the same court dated December 3, 1999, which, upon its default, granted the plaintiff's motion to declare it a “vouched in” defendant liable to the plaintiff for any monetary award obtained by the plaintiff against the defendants Nathan's Famous, Inc., and Frankly Delicious of Levittown, Inc.

ORDERED that the order entered August 22, 2003, is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the appellant's motion to vacate is granted, the order dated December 3, 1999, is vacated, and the plaintiff's motion is denied.

 Under the circumstances of this case, the motion of the defendant National Union Fire Insurance Company (hereinafter National Union) to vacate its default in opposing the plaintiff's motion to declare it a “vouched in” defendant should have been granted.   The record demonstrates that National Union was never served with the motion papers which resulted in the order dated December 3, 1999, or the “notices of vouching in” (see Loria v. Plesser, 267 A.D.2d 213, 699 N.Y.S.2d 439;  Drummond v. Petito, 253 A.D.2d 407, 677 N.Y.S.2d 133).

 The essentials of vouching in have been stated as follows:  “A named defendant who would have another (not yet a party) bound by judgment in an action must by proper notice offer to him [or her] control of the defense of the litigation” (Hartford Acc. & Ind. Co. v. First Nat. Bank & Trust Co., 281 N.Y. 162, 168, 22 N.E.2d 324;  see Glens Falls Ins. Co. v. Wood, 8 N.Y.2d 409, 412, 208 N.Y.S.2d 978, 171 N.E.2d 321).  “To be effective ․ the notice must be timely and proper, and it must offer to grant control to the [indemnitor] of the defense of the litigation” (Cole v. Long Is. Light. Co., 14 A.D.2d 922, 222 N.Y.S.2d 293;  see Castignoli v. Van Guard, 242 A.D.2d 357, 661 N.Y.S.2d 280).   Here, none of these requirements were met.