Soto v. Motor Vehicle Accident Indemnification Corp.

Appellate Division of the Supreme Court of New York

Soto v. Motor Vehicle Accident Indemnification Corp.

23 A.D.2d 728, 257 N.Y.S.2d 825, 1965 N.Y. App. Div. LEXIS 4547

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

DecidedApril 1, 1965

StatusPublished

Cited by4 cases

This text of 23 A.D.2d 728 (Soto v. Motor Vehicle Accident Indemnification Corp.) 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

Soto v. Motor Vehicle Accident Indemnification Corp., 23 A.D.2d 728, 257 N.Y.S.2d 825, 1965 N.Y. App. Div. LEXIS 4547 (N.Y. Ct. App. 1965).

Pincite

Opinion

Order, entered on July 27, 1964, denying plaintiff’s motion for summary judgment against both defendants, unanimously modified, on the law and in the exercise of discretion, to dismiss the complaint, and, as So modified, affirmed, without costs or disbursements to any party. This is not an action by the insured for a judgment declaring that his insurer must defend (see Prashker v. United States Guar. Go., 1 N Y 2d 584), bnt an action by a person injured by the insured, for a judgment declaring that the defendant United States Liability Insurance Company must defend and provide protection for the insured under its policy of insurance to him or that the defendant MVAIC must provide protection to plaintiff as a qualified person under section 605 of the Insurance Law, and determining which one it shall he. The insured has not been named a party hereto, and of course could not be hound by any determination in the action. Beyond that, however, the action is premature. The plaintiff has not instituted an action against the insured. Thus, in several respects the case differs from Curreri v. Allstate Ins. Go. (37 Mise 2d 557) upon which plaintiff relies. The questions posed herein may be academic and there is no assurance that this action will serve a useful purpose (see 3 Wemstein-Korn-Miller, N. Y. Civ. Prac., par. 3001.07). Thus, although the existence of other remedies is not decisive (see 3 Wemstein-KornMiller, 1ST. Y. Civ. Prac., par. 3001.10), under the circumstances of this case wherein the defendant insurer has disclaimed and plaintiff has allegedly given notice of claim to the defendant MVAIC, action for declaratory judgment is not an efficient judicial procedure in view of other available remedies better suited to the determination of plaintiff’s essential cause of action. Appeal from order entered on September 17, 1964 unanimously dismissed, as academic, without costs and without disbursements. Concur — Breitel, J. P., Rabin, Valente, Eager and Witmer, JJ.

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Order, entered on July 27, 1964, denying plaintiff’s motion for summary judgment against both defendants, unanimously modified, on the law and in the exercise of discretion, to dismiss the complaint, and, as So modified, affirmed, without costs or disbursements to any party. This is not an action by the insured for a judgment declaring that his insurer must defend (see Prashker v. United States Guar. Go., 1 N Y 2d 584), bnt an action by a person injured by the insured, for a judgment declaring that the defendant United States Liability Insurance Company must defend and provide protection for the insured under its policy of insurance to him or that the defendant MVAIC must provide protection to plaintiff as a qualified person under section 605 of the Insurance Law, and determining which one it shall he. The insured has not been named a party hereto, and of course could not be hound by any determination in the action. Beyond that, however, the action is premature. The plaintiff has not instituted an action against the insured. Thus, in several respects the case differs from Curreri v. Allstate Ins. Go. (37 Mise 2d 557) upon which plaintiff relies. The questions posed herein may be academic and there is no assurance that this action will serve a useful purpose (see 3 Wemstein-Korn-Miller, N. Y. Civ. Prac., par. 3001.07). Thus, although the existence of other remedies is not decisive (see 3 Wemstein-KornMiller, 1ST. Y. Civ. Prac., par. 3001.10), under the circumstances of this case wherein the defendant insurer has disclaimed and plaintiff has allegedly given notice of claim to the defendant MVAIC, action for declaratory judgment is not an efficient judicial procedure in view of other available remedies better suited to the determination of plaintiff’s essential cause of action. Appeal from order entered on September 17, 1964 unanimously dismissed, as academic, without costs and without disbursements. Concur — Breitel, J. P., Rabin, Valente, Eager and Witmer, JJ.

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Bluebook (online)

23 A.D.2d 728, 257 N.Y.S.2d 825, 1965 N.Y. App. Div. LEXIS 4547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-motor-vehicle-accident-indemnification-corp-nyappdiv-1965.

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