Peter A. Merced, Appellant, v. GEICO LLC (2026)

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action seeking to recover $6,400.61, plus interest from September 16, 2022, for the "Loss of use of property" and for "Unfair biased deceptive business practices" against Brian Winston Baptiste (Baptiste) and his insurer, GEICO Insurance Agency, LLC (GEICO) as a result of an accident that damaged plaintiff's motorcycle. Defendants submitted an answer denying the allegation and asserting affirmative defenses. After discovery, GEICO moved to dismiss so much of the complaint as was asserted against it for failure to state a cause of action, arguing that there is no action against a tortfeasor's insurance company unless a plaintiff first obtains a judgment against the insured. Plaintiff opposed the motion, arguing that GEICO is also his insurer and it seems "impractical and immoral" for him to obtain a judgment against Baptiste first due to "his lack of culpability in relation to the actions." In an order dated December 28, 2023, the Civil Court (Karen Lin, J.) granted GEICO's motion, finding that plaintiff failed to state a cause of action against GEICO because there is no privity of contract between plaintiff and GEICO, as Baptiste's insurer, and there is no unpaid judgment which would allow an action pursuant to Insurance Law § 3420.¹ Plaintiff appeals.

It is well settled that, on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court should accept the facts pleaded in the complaint as true and, affording the plaintiff the benefit of every possible favorable inference, should determine whether such facts state a cognizable cause of action (see e.g. Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). If a plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed (see Velazquez v Decaudin, 49 AD3d 712 [2008]; Dunleavy v Hilton Hall Apts. Co., LLC, 14 AD3d 479, 480 [2005]).

As there is no privity of contract between a person who is injured or sustains damages and the insurer of the tortfeasor, such person cannot sue the tortfeasor's insurer except as set forth in Insurance Law § 3420 in order to satisfy a judgment obtained against the tortfeasor (see Lang v Hanover Ins. Co., 3 NY3d 350 [2004]). While plaintiff argued that there is privity of contract because he has his own policy with GEICO, here, the action was predicated on Baptiste's insurance policy with GEICO and not plaintiff's own policy. As there was no privity of contract and the statutory conditions under Insurance Law § 3420 have not been met, plaintiff failed to state a cause of action against GEICO. Consequently, GEICO's motion for summary judgment dismissing so much of the complaint as was asserted against it was properly granted.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 26, 2026

FOOTNOTES

1.   In a stipulation of settlement entered May 23, 2024, plaintiff agreed to discontinue this action as against Baptiste.