SELCHICK v. AUTOMOBILE INSURANCE COMPANY OF HARTFORD CONNECTICUT

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Supreme Court, Appellate Division, Second Department, New York.

Faith SELCHICK, et al., appellants, v. AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, respondent, et al., defendant.

Decided: September 19, 2006

HOWARD MILLER, J.P., THOMAS A. ADAMS, PETER B. SKELOS, and JOSEPH COVELLO, JJ. Sichol & Hicks, P.C., Suffern, N.Y. (William R. Sichol, Jr., of counsel), for appellants. Michael Majewski (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), for respondent.

In an action for a judgment declaring that the defendant Automobile Insurance Company of Hartford, Connecticut, is obligated to defend and indemnify the defendant Warren Selchick in an underlying personal injury action entitled Selchick v. Schultz Ford, pending in the Supreme Court, Rockland County, under Index No. 6220/02, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Garvey, J.), dated April 18, 2005, which denied their motion for summary judgment and granted that branch of the cross motion of the defendant Automobile Insurance Company of Hartford, Connecticut, which was to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiffs' contention, their right to maintain this action against the defendant Automobile Insurance Company of Hartford, Connecticut (hereinafter AIC), is subject to the provisions of Insurance Law § 3420 (see Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 787 N.Y.S.2d 211, 820 N.E.2d 855).   As the plaintiffs did not obtain a judgment against the defendant Warren Selchick, which remained unsatisfied for 30 days, the plaintiffs cannot maintain a direct action against AIC, and we do not address the merits of the coverage issue (see Lang v. Hanover Ins. Co., supra;  Evans v. Prudential Fin., 23 A.D.3d 993, 803 N.Y.S.2d 452;  Geissler v. Liberty Mut. Ins. Co., 23 A.D.3d 432, 808 N.Y.S.2d 118).

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