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Geissler v. Liberty Mutual Insurance Co.11/14/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
THOMAS A. ADAMS, J.P., STEPHEN G. CRANE, SONDRA MILLER and WILLIAM F. MASTRO, JJ.
DECISION & ORDER
(Index No. 4573/03)
ORDERED that the order is modified, on the law, by adding to the first subparagraph of the decretal paragraph thereof granting the defendant's motion the words "without prejudice to reinstituting or commencing a new action against Liberty Mutual Insurance Company in accordance with Lang v Hanover Ins. Co. (3 NY3d 350), in the event that the plaintiffs obtain a judgment against Howard Geissler in the underlying personal injury action which remains unsatisfied for 30 days after service thereof on the insurer"; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiffs were not named insureds under the general liability insurance policy issued by Liberty Mutual Insurance Company (hereinafter Liberty Mutual) to the defendant Boy Scouts of America and their right of action was therefore subject to the provisions of Insurance Law § 3420. As both parties agree, the plaintiffs did not obtain a judgment against the defendant Howard Geissler which remained unsatisfied for 30 days after service thereof on the insurer. In light of the Court of Appeal's decision in Lang v Hanover Ins. Co. (id.), although decided after the order appealed from, the plaintiffs cannot maintain a direct action against Geissler's purported insurer, and their complaint insofar as asserted against Liberty Mutual must be dismissed (see Insurance Law § 3420; Lang v Hanover Ins. Co., supra at 354). Accordingly, we do not reach the merits of the plaintiffs' cause of action against Liberty Mutual. The complaint insofar as asserted against Liberty Mutual should have been dismissed without prejudice to the plaintiffs reinstituting or commencing a new action against that defendant if the requirements of Insurance Law § 3420 are met.
ADAMS, J.P., CRANE, S. MILLER and MASTRO, JJ., concur.
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