Justice Doris Ling-Cohan
Rodriguez was allegedly injured in a motor vehicle accident involving a car insured by American Transit Insurance (ATI) in this action for declaratory judgment. ATI alleged Rodriguez breach and failed to comply with policy requirements by failing to appear for an examination under oath, contending, as such, ATI was not obligated to afford coverage. ATI moved for a default judgment against certain defendants, including Rodriguez, and summary judgment against others. Defendants jointly opposed summary judgment. The court granted ATI’s motion for a default judgment against Rodriguez, and others as they failed to answer the complaint or appear in the action. Yet, the court denied ATI’s motion for summary judgment. It found ATI’s submissions, including an attorney affirmation conclusorily stating certain condition precedents required by the insurance policy, allegedly breached by Rodriguez, did not satisfy the requirement of tender of evidentiary proof in admissible form. Thus, ATI failed to establish prima facie entitlement to summary judgment as a matter of law. Also, ATI’s affidavits regarding mailing and service did not establish the terms of the insurance policy or that Rodriguez breached such terms, denying summary judgment.
