AZAD v. Utica National Insurance Group, appellant.

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

Susan AZAD, respondent, v. Francesco L. CAPPARELLI, etc., et al., defendants, Utica National Insurance Group, appellant.

Decided: May 27, 2008

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, DANIEL D. ANGIOLILLO, and WILLIAM E. McCARTHY, JJ. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Eric A. Portuguese and Steven B. Prystowsky of counsel), for appellant. John Walshe, New York, N.Y., for respondent.

In an action, inter alia, to recover damages for personal injuries, the defendant Utica National Insurance Group appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 20, 2007, which denied its motion pursuant to CPLR 3211(a)(3) and (7) to dismiss the fifth and sixth causes of action.

ORDERED that the order is reversed, on the law, with costs, that branch of the motion which was to dismiss the fifth and sixth causes of action pursuant to CPLR 3211(a)(3) is granted, and the motion is otherwise denied as academic.

 The plaintiff's right of action against the defendant Utica National Insurance Group (hereinafter Utica) is subject to the provisions of Insurance Law § 3420, as she was not a named insured under the commercial liability policy issued to the defendant Trayner Group, Ltd. (hereinafter Trayner) (see Selchick v. Automobile Ins. Co. of Hartford, Conn., 32 A.D.3d 924, 924-925, 822 N.Y.S.2d 575;  Geissler v. Liberty Mutual Ins. Co., 23 A.D.3d 432, 433, 808 N.Y.S.2d 118).   As the plaintiff did not obtain a judgment against Trayner that remained unsatisfied for 30 days, she lacked standing to maintain a direct action against its insurer, and the fifth and sixth causes of action, which were asserted against Utica, should have been dismissed (see Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 352, 787 N.Y.S.2d 211, 820 N.E.2d 855;  NC Venture I, L.P. v. Complete Analysis, Inc., 22 A.D.3d 544, 801 N.Y.S.2d 763).

In light of the foregoing, we need not reach the parties' remaining contentions.

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