Evans v. Prudential Financial, Inc.

23 A.D.3d 993, 803 N.Y.S.2d 452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 2005
• Status: Published

Opinion

Appeals from an order of the Supreme Court, Wyoming County (Rose H. Sconiers, J.), entered November 19, 2004. The order granted the motion of defendants Prudential Financial, Inc., Frederick W. Ingles and Shirley J. Ingles for summary judgment dismissing the complaints and cross claims against them and declared that defendant Prudential Financial, Inc. has no obligation to defend or indemnify any of the remaining defendants.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the declaration and as modified the order is affirmed without costs.

Memorandum: Supreme Court properly granted the motion of defendants Prudential Financial, Inc. (Prudential), Frederick W. Ingles and Shirley J. Ingles for summary judgment dismissing the complaints and cross claims against them. Plaintiffs lack standing to bring actions against Prudential because they have not obtained a judgment against Prudential’s insureds (see Insurance Law § 3420 [b] [1]; Lang v Hanover Ins. Co., 3 NY3d 350, 354-355 [2004]). Because plaintiffs lack standing, the court erred in declaring the rights of the parties (see Lang, 3 NY3d at 355), and we therefore modify the order accordingly. Present—Pigott, Jr., P.J., Gorski, Martoche, Pine and Lawton, JJ.