Levitt v. Fireman's Fund Insurance Companies

Appellate Division of the Supreme Court of New York

Levitt v. Fireman's Fund Insurance Companies

44 A.D.2d 558, 352 N.Y.S.2d 677, 1974 N.Y. App. Div. LEXIS 5577

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 4, 1974

StatusPublished

This text of 44 A.D.2d 558 (Levitt v. Fireman's Fund Insurance Companies) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levitt v. Fireman's Fund Insurance Companies, 44 A.D.2d 558, 352 N.Y.S.2d 677, 1974 N.Y. App. Div. LEXIS 5577 (N.Y. Ct. App. 1974).

Pincite

Opinion

In a class action for a declaratory judgment, defendants Fireman’s Fund Insurance Companies and National Surety Corp. appeal from so much of an order of the Supreme Court, Queens County, dated September 24, 1973, as (1) denied the branches of their motion which were (a) to vacate [559]*559plaintiff’s note of issue and statement of readiness and (b) for entry of a default judgment upon the amended counterclaims of defendant National Surety Corp. and (2) limited the direction therein as to notice to be given by plaintiff to all members of the class to service of a copy of the pleadings by certified mail, with requests for return receipts. Order modified by deleting from the first decretal paragraph thereof the word “ denied ” and substituting therefor the word “granted”, and by adding to the second decretal paragraph thereof the following: “In addition to copies of the pleadings, plaintiff shall serve notice on the class members that this class action has been commenced on their behalf, that they have a right to retain their own counsel in connection with the litigation, that they will be bound by the issues determined in the action in the event they remain as members of the class, that defendant National Surety Corp. has asserted counterclaims against named individuals and that the named individuals may be personally liable for any judgment rendered against them on the counterclaims; and plaintiff shall file with the court proof of compliance with this order.” As so modified, order affirmed insofar as appealed from, without costs. This case should not have been placed upon the Trial Calendar until the issues became fully joined by the interposition of a reply to the amended counterclaims. In addition, the notice which we are directing herein to be given to the class members is required in order to fully apprise the class members of the nature of the action, their right to independent counsel and the other information referred to hereinabove which must be included in the notice. Hopkins, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.

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In a class action for a declaratory judgment, defendants Fireman’s Fund Insurance Companies and National Surety Corp. appeal from so much of an order of the Supreme Court, Queens County, dated September 24, 1973, as (1) denied the branches of their motion which were (a) to vacate [559]*559plaintiff’s note of issue and statement of readiness and (b) for entry of a default judgment upon the amended counterclaims of defendant National Surety Corp. and (2) limited the direction therein as to notice to be given by plaintiff to all members of the class to service of a copy of the pleadings by certified mail, with requests for return receipts. Order modified by deleting from the first decretal paragraph thereof the word “ denied ” and substituting therefor the word “granted”, and by adding to the second decretal paragraph thereof the following: “In addition to copies of the pleadings, plaintiff shall serve notice on the class members that this class action has been commenced on their behalf, that they have a right to retain their own counsel in connection with the litigation, that they will be bound by the issues determined in the action in the event they remain as members of the class, that defendant National Surety Corp. has asserted counterclaims against named individuals and that the named individuals may be personally liable for any judgment rendered against them on the counterclaims; and plaintiff shall file with the court proof of compliance with this order.” As so modified, order affirmed insofar as appealed from, without costs. This case should not have been placed upon the Trial Calendar until the issues became fully joined by the interposition of a reply to the amended counterclaims. In addition, the notice which we are directing herein to be given to the class members is required in order to fully apprise the class members of the nature of the action, their right to independent counsel and the other information referred to hereinabove which must be included in the notice. Hopkins, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

44 A.D.2d 558, 352 N.Y.S.2d 677, 1974 N.Y. App. Div. LEXIS 5577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levitt-v-firemans-fund-insurance-companies-nyappdiv-1974.