Levin v. Intercontinental Casualty Insurance

268 A.D.2d 205, 700 N.Y.S.2d 683, 2000 N.Y. App. Div. LEXIS 11

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered November 12, 1998, which, to the extent appealed from, denied defendant’s motion to dismiss the complaint without prejudice to renewal upon compliance with Insurance Law § 1213 and granted plaintiffs cross motion to require defendant to post pre-answer security, pursuant to Insurance Law § 1213, in the amount of $4,835,333.99, unanimously affirmed, without costs.

Defendant’s motion to dismiss, which invited the court to treat as a summary judgment motion, constitutes a “pleading” within the meaning of Insurance Law § 1213 (c) (1), thereby triggering the requirement that defendant post an undertaking (cf., Brown v Security Union Tit. Ins. Co., 192 AD2d 386). Adoption of a contrary interpretation, permitting a foreign unauthorized insurer to contest the merits of a claim without posting security, would be contrary to the legislative purpose and policy behind the statute (see, Insurance Law § 1213 [a]); Curiale v Ardra Ins. Co., 88 NY2d 268, 277-278). The court properly set the amount of the bond in the amount claimed by plaintiff. Concur—Rosenberger, J. R, Williams, Lerner, Saxe and Buckley, JJ.