ALLSTATE INSURANCE COMPANY v. CABRERA (2026)

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant GV Nunezsivirian in an underlying action entitled Acosta v. Perez, pending in the Supreme Court, Suffolk County, under Index No. 616726/21, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (George Nolan, J.), dated April 4, 2024, and (2) an order of the same court dated November 12, 2024.  The order dated April 4, 2024, denied the plaintiff's unopposed motion for leave to enter a default judgment against the defendant GV Nunezsivirian and for summary judgment on the complaint insofar as asserted against the defendants Angel Perez and Beronica Floresperez.  The order dated November 12, 2024, denied the plaintiff's motion for leave to reargue its prior motion for leave to enter a default judgment against the defendant GV Nunezsivirian and for summary judgment on the complaint insofar as asserted against the defendants Angel Perez and Beronica Floresperez.

ORDERED that the appeal from the order dated November 12, 2024, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated April 4, 2024, is reversed, on the law, without costs or disbursements, the plaintiff's motion for leave to enter a default judgment against the defendant GV Nunezsivirian and for summary judgment on the complaint insofar as asserted against the defendants Angel Perez and Beronica Floresperez is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to defend or indemnify the defendant GV Nunezsivirian in the underlying action entitled Acosta v. Perez, commenced in the Supreme Court, Suffolk County, under Index No. 616726/21.

On October 9, 2020, the defendant GV Nunezsivirian allegedly was operating a vehicle owned by her deceased boyfriend Luis Rodriguez (hereinafter the decedent) when it was involved in an accident with a vehicle owned by the defendant Angel Perez and operated by the defendant Beronica Floresperez, in which the defendant Blanca Acosta was a passenger.  At the time of the accident, the decedent's vehicle was insured under a policy issued by the plaintiff covering the period of January 11, 2020, to January 11, 2021.  The decedent had died on April 15, 2020.  In August 2021, Acosta commenced an action against Nunezsivirian, the decedent, Perez, and Floresperez to recover damages for personal injuries Acosta allegedly sustained in the accident (hereinafter the underlying action).

The plaintiff initially agreed to provide a defense to Nunezsivirian in the underlying action but subsequently commenced this action against Nunezsivirian, Perez, and Floresperez, among others, for a judgment declaring that it is not obligated to defend or indemnify Nunezsivirian in the underlying action.  The plaintiff alleged that there was no coverage under the policy issued to the decedent for the defense and indemnification of Nunezsivirian, since she was not acting as the legal representative for the decedent's estate at the time of the accident and did not have proper temporary custody of the decedent's vehicle at that time.  Perez and Floresperez interposed an answer.

The plaintiff moved for leave to enter a default judgment against Nunezsivirian and for summary judgment on the complaint insofar as asserted against Perez and Floresperez.  In an order dated April 4, 2024, the Supreme Court denied the plaintiff's unopposed motion.  The plaintiff appeals.

“A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant's default, and the facts constituting the claim” (Mountain Val. Indem. Co. v. Cabrera, 241 A.D.3d 541, 542, 241 N.Y.S.3d 107 [internal quotation marks omitted];  see Global Liberty Ins. Co. v. Surgery Ctr. of Oradell, LLC, 153 A.D.3d 606, 606, 59 N.Y.S.3d 751).  “A default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that plaintiff establish a right to a declaration” (Peak Prop. & Cas. Ins. Corp. v. Rodriguez, 230 A.D.3d 512, 514, 218 N.Y.S.3d 69 [internal quotation marks omitted];  see Ameriprise Ins. Co. v. Kim, 185 A.D.3d 995, 996, 126 N.Y.S.3d 403).  “Ordinarily, ‘[a] process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service’ ” (Bank of N.Y. Mellon v. Ziangos, 194 A.D.3d 778, 779, 149 N.Y.S.3d 145, quoting Bethpage Fed. Credit Union v. Grant, 178 A.D.3d 997, 997, 115 N.Y.S.3d 410).

Here, in support of that branch of its motion which was for leave to enter a default judgment against Nunezsivirian, the plaintiff submitted, inter alia, an affidavit of a process server, who averred that he served the summons and complaint upon Nunezsivirian pursuant to CPLR 308(2) by delivering the summons and complaint to a person of suitable age and discretion at Nunezsivirian's residence and by mailing a copy of the summons and complaint to Nunezsivirian at her residence.  The process server's affidavit constituted prima facie evidence of proper service upon Nunezsivirian (see id.;  Hulse v. Wirth, 175 A.D.3d 1276, 1277–1278, 108 N.Y.S.3d 148).  Contrary to the Supreme Court's determination, any alleged discrepancies in the spelling of Nunezsivirian's name were mere irregularities (see Flanagan v. Delaney, 194 A.D.3d 694, 697, 148 N.Y.S.3d 220;  Hulse v. Wirth, 175 A.D.3d at 1278, 108 N.Y.S.3d 148;  Navarro v. Singh, 110 A.D.3d 497, 498, 973 N.Y.S.2d 77;  Ortiz v. Santiago, 303 A.D.2d 1, 4, 757 N.Y.S.2d 521).

Moreover, the plaintiff established its right to a declaration that it has no obligation to defend or indemnify Nunezsivirian in the underlying action.  “An insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy” (Pro's Choice Beauty Care, Inc. v. Great N. Ins. Co., 190 A.D.3d 868, 870, 140 N.Y.S.3d 544;  see Nationwide Mut. Fire Ins. Co. v. Nelson, 232 A.D.3d 747, 748, 220 N.Y.S.3d 157).  “In determining a dispute over insurance coverage, we first look to the language of the policy” (Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 221, 746 N.Y.S.2d 622, 774 N.E.2d 687;  see State Farm Fire & Cas. Co. v. Russo, 227 A.D.3d 927, 929, 211 N.Y.S.3d 487).

Pursuant to the terms of the policy issued to the decedent, in the case of the death of the named insured, the “rights and duties [under the policy] will be transferred to [the named insured's] legal representative.”  However, “[u]ntil [the named insured's] legal representative is appointed, anyone having proper temporary custody of [the named insured's] property will have [the named insured's] rights and duties but only with respect to that property.”  The evidence submitted by the plaintiff in support of its motion established that the decedent's daughter was appointed the legal representative of the decedent's estate in January 2021 and that Nunezsivirian did not have permission to operate the decedent's vehicle at the time of the accident.  As such, the plaintiff established, prima facie, that Nunezsivirian was not the legal representative of the estate and that she did not have proper temporary custody of the vehicle at the time of the accident (cf.  Lumbermen's Mut. Cas. Co. v. Brown, 20 N.Y.2d 542, 545, 285 N.Y.S.2d 589, 232 N.E.2d 628;  see generally Nationwide Mut. Fire Ins. Co. v. Nelson, 232 A.D.3d at 749, 220 N.Y.S.3d 157).  Accordingly, the Supreme Court should have granted the plaintiff's motion for leave to enter a default judgment against Nunezsivirian and for summary judgment on the complaint insofar as asserted against Perez and Floresperez (see Pro's Choice Beauty Care, Inc. v. Great N. Ins. Co., 190 A.D.3d at 871, 140 N.Y.S.3d 544;  Travelers Indem. Co. of Am. v. Pullini Water Servs., Inc., 35 A.D.3d 846, 828 N.Y.S.2d 130).

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to defend or indemnify Nunezsivirian in the underlying action (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670).

BRATHWAITE NELSON, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.