Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), entered March 5, 2004, which denied his motion for summary judgment.

Order unanimously modified by adding thereto a provision, that upon searching the record, summary judgment is granted to defendant dismissing the complaint; as so modified, affirmed without costs.

This action was commenced by plaintiff against defendant insurer, pursuant to Insurance Law § 3420 (a) (2) to recover on an unsatisfied judgment in the amount of $17,925, which plaintiff had obtained in an underlying action against defendant's insured for personal injuries allegedly sustained in a motor vehicle accident. As a condition precedent to maintaining the direct action against the insurer, plaintiff was required to demonstrate that a valid and enforceable judgment in the underlying action against the insured had been entered (see Lang v Hanover Ins. Co., 3 NY3d 350 [2004]; Braddy v Allcity Ins. Co., 282 AD2d 637 [2001]). Although a judgment in the underlying personal injury action had been entered following the insured's default, this court takes judicial notice of an order of the court in the underlying action which indicates that during the pendency of this appeal, the default judgment in the underlying action was vacated (see Khatibi v Weill, 8 AD3d 485 [2004]; Ptasznik v Schultz, 247 AD2d 197 [1998]; Brandes Meat Corp. v Cromer, 146 AD2d 666 [1989]). In the absence of an unsatisfied judgment, plaintiff's direct action under Insurance Law § 3420 (a) (2) is precluded (see Lang v Hanover Ins. Co., 3 NY3d 350, supra).

Under the circumstances presented herein, it is appropriate for this court to search the [*2]record and to grant summary judgment to the nonmoving defendant dismissing the complaint (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; cf. Anderson v Colonial Penn Ins. Co., 179 AD2d 504 [1992]).
Decision Date: April 29, 2005