Lincoln v. Crystal Apartments Group, L.P.

5 A.D.3d 355, 771 N.Y.S.2d 901, 2004 N.Y. App. Div. LEXIS 2207

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants and defendant third-party plaintiff appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated November 14, 2002, as denied that branch of their cross motion which was for summary judgment on the cause of action for a declaration that the third-party defendant St. Paul Mercury Insurance Company, also known as St. Paul Fire & Marine Insurance Company, is obligated to defend and indemnify the third-party plaintiff in the main action, and denied that branch of their cross motion which was to stay prosecution of the main action pending the outcome of the third-party action, and the third-party defendants St. Paul Mercury Insurance Company, also known as St. Paul Fire & Marine Insurance Company, and F & L Claims Service, Inc., cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was to dismiss the second and third causes of action in the third-party complaint. Application by F & L Claims Service, Inc., to withdraw its cross appeal as academic in light of an order of the Supreme Court, Queens County, dated April 28, 2003.

Ordered that the application is granted, and the cross appeal by F & L Claims Service, Inc., is dismissed as academic, without costs or disbursements; and it is further,

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion of the third-party defendants St. Paul Mercury Insurance Company, also known as St. Paul Fire & Marine Insurance Company and F & L Claims Service, Inc., which was to dismiss the second and third causes of action in the third-party complaint insofar as asserted against the third-party defendant St. Paul Mercury Insurance Company, also known as St. Paul Fire & Marine Insurance Company, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The Supreme Court should have dismissed the second and third causes of action sounding in fraud and alleging bad faith, respectively, insofar as asserted against the third-party defendant St. Paul Mercury Insurance Company, also known as St. Paul Fire & Marine Insurance Company, for failure to state causes of action (see CPLR 3016; see New York Univ. v Continental Ins. Co., 87 NY2d 308, 316 [1995]).

The parties’ remaining contentions are without merit. Goldstein, J.P., Adams, Townes and Mastro, JJ., concur.