3215 Denied

Here, the lower court denied the unopposed motion for a default judgment because “Here, accepting all of the facts that plaintiff asserts as true, they provide at best, some circumstantial evidence that a fraud may have occurred”.  Insurers consistently argue that circumstantial evidence is sufficient to satisfy their burden at trial, in a summary judgment motion, or in an arbitration to show that the accident was not a true accident.  In this case the Appellate Division held otherwise.  Even in an unopposed motion for a default judgment where the burden is lower and easier to satisfy, the insurer must prove that that the accident was not a true accident and not merely that they have a reason to believe it was not a true accident.

Ameriprise Ins. Co. v Kim, 2020 NY Slip Op 04286 [2d Dept. 2020]

“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” (Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606; see CPLR 3215[f]). ” [A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that [the plaintiff] establish a right to a declaration'” against the defendants (JBBNY, LLC v Dedvukaj, 171 AD3d 898, 902, quoting Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 AD3d 1493, 1494; see Merchants Ins. Co. of N.H. v Long Is. Pet Cemetery, 206 AD2d 827, 828).

Here, while the plaintiff submitted proof of proper service of the summons and the complaint, the non-answering defendants’ default, and the facts constituting the plaintiff’s claim, the plaintiff’s submissions in support of the motion failed to establish its right to the declarations sought (see JBBNY, LLC v Dedvukaj, 171 AD3d at 903). As such, we agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the non-answering defendants.

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