Sherman v. Morales

50 A.D.2d 610, 375 N.Y.S.2d 377, 1975 N.Y. App. Div. LEXIS 12409

Opinions

— Appeal from an order of the Supreme Court at Special Term (Charles R. Rubin, J.), entered August 9, 1974, in Kings County, which denied, without prejudice to a renewal thereof, the motion by respondents to implead Motor Vehicle Accident Indemnification Corporation as a party defendant. Memorandum. In a negligence action to recover damages for personal injuries, etc., the Motor Vehicle Accident Indemnification Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated September 9, 1974, as, upon denying plaintiffs’ motion to implead it as a party defendant, did so without prejudice to renewal of the motion under certain circumstances. Order reversed insofar as appealed from, thus deleting from the decretal paragraph thereof all language following the word "denied”, without costs. We agree with the views expressed in the dissenting opinion that the order under review is appealable and that the statute in question (Insurance Law, § 608) should be amended to avoid the unjust result fostered herein by the decision of this court in Allegretti v Mancuso (37 AD2d 964, affd 33 NY2d 882). However, we are unable to find any valid distinction between the present case and Allegretti (supra) and hence the order must be reversed insofar as appealed from, thus deleting the permission therein given to plaintiffs to renew their motion after trial.