Abbate v. Medbrod

109 A.D.2d 768 | N.Y. App. Div. | 1985

— In an action to recover damages for personal injuries, defendant Darrah Forum appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Oppido, J.), dated December 9, 1983, as denied that branch of a motion which sought dismissal of the complaint as against it pursuant to CPLR 3211 (a) (7).

Order reversed, insofar as appealed from, on the law, with costs, the aforenoted branch of the motion granted, complaint dismissed as against Darrah Forum, and action as against the remaining defendants severed.

In this action to recover damages for personal injuries sustained as the result of an automobile accident, it appears that plaintiff mistakenly combined the names of one of the defendants’ insurers (Forum Insurance Company), and that insurer’s general managing agent (Will Darrah & Associates, Inc.) and formed the named defendant, Darrah Forum. Defendant “Darrah Forum” moved to dismiss the complaint as to it on the grounds that no such entity exists and that the existing entity, Will Darrah & Associates, Inc., is an improper party. That branch of the motion was denied at Special Term. We reverse the order, insofar as appealed from, and grant dismissal as against Darrah Forum. Plaintiff does not have a cause of action against either Will Darrah & Associates, Inc. or Forum Insurance Company, as New York does not permit direct suits against insurers prior to notice of entry of an unsatisfied judgment against an insured (Thrasher v United States Liab. Ins. Co., 19 NY2d 159; Insurance Law § 167 [1] [b]). Mollen, P. J., Titone, Lazer and Thompson, JJ., concur.