AS SUBROGEE OF BRIAN CHAPMAN v. CURI CAMA CUNDURI NATIONAL TAXI SERVICE INC (2026)

The following papers, numbered 1, were considered in connection with Plaintiff's Notice of Motion (Motion Seq. No. 2) for an Order: (a) pursuant to Civil Practice Law and Rules § 3215, granting plaintiff's motion in its entirety and entering default judgment against Defendants; and (b) entering judgment against Defendants in the total amount of Eleven Thousand Six Hundred Ten Dollars and 91 cents ($11,610.91) plus costs and interest at the greatest extent permitted by law; (c) together with such other and further relief as this Court deems just, equitable and proper:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 2)/Affirmation of Benjamin Wolf, Esq./

Exhibits A-E 1

Upon the foregoing papers, the Court now rules as follows:

Plaintiff commenced this action on June 5, 2025, by filing a Summons and Complaint against Defendants MIGUEL ANGEL CURI CAMA-CUNDURI [hereinafter Defendant CAMA- CUNDURI] and NATIONAL TAXI SERVICE, INC. [hereinafter Defendant TAXI SERVICE] regarding a claim of $11,610.91 for automobile property damages suffered by the contractual Subrogor, BRIAN M. CHAPMAN, due to a motor vehicle accident on September 2, 2024 at 127 Bethune Blvd., Spring Valley. See NYSCEF Doc. Nos. 1-2. Defendant CAMA-CUNDURI was served on June 20, 2025, at 12 Division Avenue, Spring Valley, New York pursuant to Civil Practice Law and Rules § 308(4). See NYSCEF Doc. No. 4. Defendant TAXI SERVICE was served on June 23, 2025, by service on the Office of the Secretary of State of the State of New York pursuant to Business Corporation Law § 306. See NYSCEF Doc. No. 6. Additionally, Plaintiff provided an affidavit of additional mailing of the Summons and Complaint to Defendant TAXI SERVICE pursuant to Civil Practice Law and Rules § 3215(g) on April 30, 2026. See NYSCEF Doc. No. 11. Despite service Defendants failed to appear, answer or move for an extension of time to answer.

Plaintiff moved for default judgment pursuant to Civil Practice Law and Rules § 3215 (Motion Seq. No. 1) on April 30, 2026. See NYSCEF Doc. Nos. 8-14. The undersigned denied Plaintiff's motion for default judgment in a Decision and Order dated June 23, 2026. See NYSCEF Doc. No.18. In that Decision and Order Plaintiff was provided leave to refile their motion for default judgment within ninety (90) days. See NYSCEF Doc. No. 18, p. 4. On June 25, 2026, Plaintiff filed the instant timely motion for default judgment pursuant to Civil Practice Law and Rules § 3215 (Motion Seq. No. 2).

In order to enter a default judgment pursuant to Civil Practice Law and Rules § 3215, upon a defendant's failure to appear, a plaintiff must submit the "requisite proof" which includes affidavits setting forth the basis of the claim and the facts of the default, that an additional mailing has been made, an affidavit of military investigation, the pleadings, and an affidavit of service. See Civil Practice Law and Rules § 3215(f); See also Rosenzweig v. Gubner, 194 AD3d 1086 (2d Dept 2021). "Given that in default proceedings the defendant has failed to appear, and the plaintiff does not have the benefit of discovery, the affidavit or verified complaint need only allege enough facts to enable a court to determine that a viable cause of action exists." Woodson v. Mendon Leasing Corp, 100 NY2d 62, 70-71 (2003). "Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney." Civil Practice Law and Rules § 3215(f); See also Woodson v. Mendon Leasing Corp., 100 NY2d at 70.

In this action, counsel filed an attorney affirmation, a copy of the summons and complaint, copies of the affidavits of service for both Defendants, an affirmation of mailing pursuant to Civil Practice Law and Rules § 3215, an affirmation of facts from a representative of Plaintiff, and a certified police accident report.

The Affidavit of Preston Smith, a "Subro Auto Lit Rep" for Plaintiff, asserts subrogor Brian M. Chapman suffered property damage on September 2, 2024, to his parked 2018 Honda and at the time of the damage Chapman held an insurance policy with Plaintiff. The Smith Affidavit delineates that Plaintiff reimbursed Chapman for his loss and became subrogated to all Chapman's rights, claims and causes of action against the Defendants. Further, the Smith Affidavit contends that Plaintiff paid $11,610.91 for repairs including the deductible, the total amount of damages claimed by Plaintiff.

Plaintiff has failed to include either an affidavit of the facts regarding the accident, or a complaint verified by a party with personal knowledge of the facts, as required by Civil Practice Law and Rules § 3215(f). In contrast to Plaintiff's first application for default judgment -- counsel for Plaintiff indicates in this Affirmation that he has made diligent efforts to contact the insured, Chapman, as to the underlying accident, but despite those efforts the Plaintiff has been unable to contact Chapman. However, other than that conclusory statement, there is no documentation of the efforts that have been made and by whom to contact the Chapman to obtain a supporting affidavit from same.

The instant action is a subrogation action which "allows an insurer to stand in the shoes of its insured and seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse." Kaf-Kaf, Inc. v. Rodless Decorations, 90 NY2d 654, 660 [1997]. Once payment of the amount of loss is made to the insured, the insurer then becomes the equitable owner of any right of action of the insured so that they can recover the amount of their loss from the person responsible. See Antonitti v City of Glen Cove, 266 AD2d 487 [2d Dept 1999].

In this action, Plaintiff is required to show, through an affidavit by someone with personal knowledge of the facts surrounding the accident that the defendant was negligent, i.e. that they were legally responsible for the subrogor's loss. The Complaint filed in this action, and annexed to the instant application, is insufficient to support Plaintiff's motion since it is solely signed by Plaintiff's counsel, Benjamin Wolf, Esq and not verified by the subrogor. See Nechadim Corp. v 500 Putnam Street Realty, LLC, 237 AD3d 951, 952 [2d Dept 2025].

Upon this application, Plaintiff has included a certified copy of the police report annexed to the instant application and seeks to rely upon the statements of the insured referenced by the responding police officer as proof of the facts surrounding the accident and the Defendant's negligence. The certified police report is admissible as a business record pursuant to Civil Practice Law and Rules § 4518. However, the Plaintiff's reliance on the statements contained within the police report as a basis for proof of Defendant's negligence is insufficient as there is no evidence the responding officer observed the accident and therefore any statements of the insured contained within the police report are hearsay.

The inclusion of statements of people involved in an accident in a police report is clearly hearsay, but the statements can be considered if a hearsay exception is demonstrated. See Wynne v Diaz, 102 AD3d 862, 864 [2d Dept 2013]. "The use of a statement recorded in a police accident report involves two levels of hearsay, each of which must fit within a hearsay exception to render the statement contained within the report admissible." Yassin v Blackman, 188 AD3d 62, 65 [2d Dept 2020]. Plaintiff has satisfied the first level of hearsay, as the certified police report is admissible under the business record (Civil Practice Law and Rules § 4518[c]) exception since it is a report made based upon the responding officer's personal observations while he/she was carrying out their police duties. See id. However, here, the statements fail as to the second level of hearsay.

The instant action being a subrogation action, the insured is not a party to the instant action, therefore the statements attributed to him in the police accident report without more, such as an affidavit, do not fall within the hearsay exception of admissions of a party. See Liberty Mut. Ins. Co. v Perez, 23 Misc 3d 140(A) [1st Department, Appellate Term, 2009]. Subrogation is an equitable doctrine" whose purpose and intent are to allow an insurance company to obtain reimbursement for monies paid on behalf of their insured, not to provide the insurance company status as a "party" as the term is used in a hearsay exception. See Steward v Brooklyn Pier 1 Residential Owner, LP, 246 AD3d 988, 991 [2d Dept 2026]. Therefore, in as much as Plaintiff's reliance on the insured's statements in the police report is based upon the hearsay exception, admission of a party, the exception is inapplicable to the Plaintiff insurance company, who was not a "party" to the subject accident. The Court notes that Plaintiff has actually not made any argument as to the hearsay exception upon which they are relying upon the insured's statements within the certified police report and therefore the reference to the exception for an admission of a party is based upon inferences drawn from the filings by this Court.

Since the Plaintiff's submission has failed to satisfy both levels of hearsay exception for admission, the Court cannot credit the insured's alleged statements to the responding officer in the police report as a basis of proof of Defendant's negligence as required by Civil Practice Law and Rules § 3215. Based upon the foregoing, the Plaintiff's motion for default judgment is denied since they have failed to support the instant application with sufficient admissible evidence based upon personal knowledge of the facts as to the underlying accident sufficient to establish the Defendants' liability. See GEICO v Harris, 20 Misc 3d 135(A), *1 [App Term, 2nd and 11th Term 2008].

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Plaintiff's Motion for Default Judgment (Motion Seq. No. 2) is denied with leave to refile within 90 days.

The foregoing constitutes the Decision and Order of this Court on Motion Seq No. 2.

Dated: October 2, 2026

New City, New York

HON. JOHN P. COLLINS, Jr., J.S.C.

John P. Collins, Jr., J.