Appeal from an order of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered August 4, 2005. The order denied defendant's motion to vacate two separate default judgments entered against defendant, one in favor of plaintiff Xavier Cordova and the other in favor of plaintiff Kenneth Amaya, to dismiss the complaint, to direct restitution and to vacate all notices of execution.

Order reversed without costs, defendant's motion granted, judgments and notices of execution vacated, complaint dismissed, and plaintiff Kenneth Amaya is directed to make restitution to defendant in the principal sum of $18,455.09 with interest thereon from October 18, 2001 and plaintiff Xavier Cordova is directed to make
restitution to defendant in the principal sum of $11,283.10 with interest thereon from October 30, 2001.

Plaintiffs commenced the instant action against defendant insurance company, pursuant to Insurance Law § 3420 (a) (2), seeking to recover on two unsatisfied judgments which plaintiffs had obtained in an action against defendant's insured for personal injuries allegedly sustained in a motor vehicle accident. The judgments in the underlying action were entered following the insured's default.

By order entered August 2, 2001, a motion by plaintiffs for summary judgment in the instant action was granted on default. Thereafter, separate judgments were entered in favor of each plaintiff against defendant, and defendant's bank account was garnished in the sum of $18,455.09 by plaintiff Kenneth Amaya on October 18, 2001 and in the sum of $11,283.10 by plaintiff Xavier Cordova on October 30, 2001. Subsequently, the insured's attorneys moved to vacate the default judgments entered against the insured in the underlying action on the ground that the insured was not properly served with process. After a traverse hearing, by order entered [*2]December 7, 2004, the court granted the insured's motion, vacated the default judgments entered against the insured and dismissed the underlying action against the insured. On April 20, 2005, defendant herein moved for an order vacating the judgments and execution notices in the instant action, dismissing the complaint and directing restitution to defendant. Although said motion was unopposed, the court below denied same, and the instant appeal by defendant ensued.

In order to maintain a direct action against an insurer, there must be a valid and enforceable judgment in the underlying action (see Lang v Hanover Ins. Co., 3 NY3d 350 [2004]; Hernandez v American Tr. Ins. Co., 2 AD3d 584 [2003]; Braddy v Allcity Ins. Co., 282 AD2d 637 [2002]; Berger v American Tr. Ins. Co., 3 Misc 3d 130[A], 2005 NY Slip Op 50390[U] [App Term, 2d & 11th Jud Dists 2004]). Inasmuch as the judgments in the underlying action were vacated on jurisdictional grounds, there have never been any valid and enforceable judgments upon which the judgments in the instant case could be based. Moreover, defendant did not unduly delay in moving to vacate the judgments against it once the underlying judgments were vacated. Under these circumstances, the lower court improvidently exercised its discretion in denying defendant's motion. Accordingly, defendant's motion is granted, the judgments and execution notices are vacated, the complaint dismissed, plaintiff Kenneth Amaya is directed to pay defendant restitution in the principal sum of $18,455.09 with interest thereon from October 18, 2001 and plaintiff Xavier Cordova is directed to pay defendantrestitution in the principal sum of $11,283.10 with interest thereon from October 30, 2001.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 16, 2007