GARCIA v. Gladstein & Isaac, Nonparty Appellant.

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

Marc Anthony GARCIA, Respondent, v. Anthony ZITO, et al., Defendants; Gladstein & Isaac, Nonparty Appellant.

Decided: August 04, 1997

Before RITTER, J.P., and SULLIVAN, ALTMAN and McGINITY, JJ. Gladstein & Isaac, New York City, (Allen H. Isaac, Brian J. Isaac, and Emily Diamond, of counsel), nonparty appellant pro se. Philip W. Rogers, Holtsville, (Eric Besso, of counsel), for respondent.

ORDERED that the order is affirmed, with costs.

The court correctly denied the appellant's motion to withdraw as counsel as an improper attempt to test the attempted disclaimer of coverage by the insurer of the defendant Club South Inc., d/b/a Phases (see, Brothers v. Burt, 27 N.Y.2d 905, 317 N.Y.S.2d 626, 265 N.E.2d 922;  Monaghan v. Meade, 91 A.D.2d 1014, 1015, 457 N.Y.S.2d 886;  Laura Accessories v. A.P.A. Warehouses, 140 A.D.2d 182, 527 N.Y.S.2d 795;  cf., Dordal v. Laces Roller Corp., 143 A.D.2d 727, 533 N.Y.S.2d 291;  Cullen v. Olins Leasing, 91 A.D.2d 537, 538, 457 N.Y.S.2d 9).   The right of an insurer to deny coverage “can only be resolved by a declaratory judgment action in which the defendant would be able to adequately litigate the facts of [the insurance company's] disclaimer” (Laura Accessories, Inc. v. A.P.A. Warehouses, Inc., supra, at 182, 527 N.Y.S.2d 795).


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