Presley v. Williams

57 A.D.2d 947, 395 N.Y.S.2d 92, 1977 N.Y. App. Div. LEXIS 12221

Opinion

In a negligence action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Queens County, dated February 11, 1977, which denied appellant’s motion to withdraw as attorney for the defendant on the ground that the latter’s insurance company had disclaimed coverage. Order affirmed, with $50 costs and disbursements to plaintiff payable by appellant. An attorney cannot use a motion to withdraw as a means of determining the validity of an insurance company’s disclaimer (Brothers v Burt, 27 NY2d 905). However, Special Term was premature in determining that the insurance company was estopped from disclaiming liability. The appropriate vehicle to resolve that issue is a declaratory judgment action. Martuscello, J. P., Cohalan, Damiani and Titone, JJ., concur.