Supreme Court, Kings County, May 12, 2021

Steven G. Legum, Mineola, for plaintiff.

By summons and notice of motion electronically filed with the Kings County Clerk's Office on February 18, 2021, plaintiff The Premins Company, Inc. (hereinafter plaintiff or Premins) has moved pursuant to CPLR 3213 for summary judgment in lieu of complaint against defendant Tribesmen Group, Inc. (hereinafter defendant or Tribesmen). This motion was unopposed.

Background

On February 18, 2021, Premins commenced the instant action by filing a summons and notice of motion in lieu of complaint (hereinafter the commencement papers) with the Kings County Clerk's Office. The commencement papers allege that Premins is an insurance premium financing company that advanced money to Tribesmen pursuant to a premium finance agreement between the parties. When Tribesmen failed to make the agreed-upon monthly payment, Premins commenced this action by motion for summary judgment in lieu of complaint pursuant to CPLR 3213.

Premins determined the amount due and owing to be the sum of $41,006.16 excluding attorney's fees. This sum was arrived by taking the balance due and owing in the amount of $39,053.49 and adding an additional 5% pursuant to the provisions of Banking Law § 569 (1), leaving a total due of $41,006.16. Premins claimed that it hired outside counsel to pursue the debt and seeks attorney's fees in the amount of 20% of the amount owed pursuant to the premium finance agreement.

Motion Papers

The commencement papers consist of the summons, the notice of motion for summary [*2]judgment in lieu of complaint, an affirmation of plaintiff's counsel, an affidavit of plaintiff's president and an affidavit of service. The affidavit of plaintiff's president identifies two annexed exhibits labeled A and B. Exhibit A is identified as a copy of the premium finance contract{**72 Misc 3d at 606} between the plaintiff and the defendant. Exhibit B is described as a computer printout of the statement of account maintained by the plaintiff. Also included with the notice of motion in lieu of complaint is a document labeled exhibit C. The document is denominated as a default letter. Neither plaintiff's counsel nor plaintiff's president identified exhibit C.

Law and Application

CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice (Goldstein v Saltzman, 13 Misc 3d 1023 [Sup Ct, Nassau County 2006], citing Flushing Natl. Bank v Brightside Mfg., 59 Misc 2d 108 [Sup Ct, Queens County 1969]). A premium finance agreement qualifies as an instrument for the payment of money qualifying for summary judgment under CPLR 3213 (US Premium Fin. v Terranova Masonry, Inc., 172 AD3d 1139 [2d Dept 2019]; US Premium Fin. v Sage Equip. Leasing Corp., 122 AD3d 919 [2d Dept 2014]).

The affidavit of Premins' process server establishes that on February 23, 2021, the commencement papers were served on Tribesmen by delivery of same to the New York State Secretary of State. Although duly served, Tribesmen has not appeared or opposed the motion.

Premins' commencement papers, including the affirmation of its counsel and the affidavit of its president, establish the existence of an instrument for the payment of a sum certain and the defendant's failure to make the payments called for by the terms of that instrument.

Banking Law § 569 (3) provides in pertinent part as follows:

"Notwithstanding the provisions of this section, a premium finance agency shall not take or receive from or charge an insured any cancellation charge or attorney's fees unless, within ten days after default in the payment of any instalment of a premium finance agreement, the agency has mailed a notice of the default to the insured at his address as shown on the agreement and to any insurance agent or broker named therein at his place of business as shown therein."

Premins' commencement papers, however, contained no sworn testimony from anyone with personal knowledge authenticating the document attached as exhibit C and denominated as a notice of default. Nor was there sworn testimony from anyone with personal knowledge averring that{**72 Misc 3d at 607} the plaintiff mailed a notice of default to the defendant as required by Banking Law § 569 (3). It is also noted that the finance agreement does not provide for a sum certain with respect to the recovery of attorney's fees in the event of a default in payment on the instrument.

In the absence of evidence of plaintiff's compliance with the requirements of Banking Law § 569 (3), the plaintiff has not established its entitlement to attorney's fees (US Premium Fin., 122 AD3d 919).

Accordingly, the instant motion for summary judgment in lieu of complaint is granted to the extent of awarding the plaintiff a judgment in the amount of $41,006.16. Premins is not automatically entitled to attorney's fees pursuant to Banking Law § 569 (3). A hearing must be held to determine whether an award of attorney's fees is warranted and, if so, the amount of such award (US Premium Fin., 122 AD3d at 920).