Middletown Plaza Associates v. United Surety & Financial Guarantee Co.

51 A.D.2d 581, 378 N.Y.S.2d 769, 1976 N.Y. App. Div. LEXIS 10872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1976
• Status: Published

Opinion

In an action inter alia for a declaratory judgment, plaintiffs appeal from an order of the Supreme Court, Orange County, dated March 17, 1975, which granted defendant’s motion inter alia to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 8). Order reversed, on the law, with $50 costs and disbursements, and motion remanded to Special Term for a hearing and a new determination on the issue of jurisdiction. No fact issues were presented on this appeal. The resolution of the question of whether the court has jurisdiction stems from whether defendant’s agent had actual or apparent authority to issue bonds outside Pennsylvania (Insurance Law, § 59-a, subds 1, 2). Plaintiffs should be given the opportunity to present evidence, if they can, to establish that the agent who issued the bonds to the subcontractor, Bernard H. Steinke, Inc., had actual or apparent authority to do so. Hopkins, Acting P. J., Martuscello, Margett, Christ and Shapiro, JJ., concur. [81 Misc 2d 66.]