Douglas L. Evans v Prudential Financial, Inc.

Evans v Prudential Fin., Inc. 2005 NY Slip Op 08365 [23 AD3d 993] November 10, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Douglas L. Evans, as Administrator of the Estate of Isaac A. Evans, Deceased, Appellant, v Prudential Financial, Inc., et al., Respondents, et al., Defendant. (Action No. 1.) Laurie L. Willard, as Coadministrator of the Estate of Robert W. Willard, Deceased, Appellant, v Douglas L. Evans, as Administrator of the Estate of Isaac A. Evans, Deceased, et al., Defendants, and Prudential Property and Casualty Insurance Company et al., Respondents. (Action No. 2.)

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Appeals from an order of the Supreme Court, Wyoming County (Rose H. Sconiers, J.), entered November 19, 2004. The order granted the motion of defendants Prudential Financial, Inc., Frederick W. Ingles and Shirley J. Ingles for summary judgment dismissing the complaints and cross claims against them and declared that defendant Prudential Financial, Inc. has no obligation to defend or indemnify any of the remaining defendants. [*2]

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the declaration and as modified the order is affirmed without costs.

Memorandum: Supreme Court properly granted the motion of defendants Prudential Financial, Inc. (Prudential), Frederick W. Ingles and Shirley J. Ingles for summary judgment dismissing the complaints and cross claims against them. Plaintiffs lack standing to bring actions against Prudential because they have not obtained a judgment against Prudential's insureds (see Insurance Law § 3420 [b] [1]; Lang v Hanover Ins. Co., 3 NY3d 350, 354-355 [2004]). Because plaintiffs lack standing, the court erred in declaring the rights of the parties (see Lang, 3 NY3d at 355), and we therefore modify the order accordingly. Present—Pigott, Jr., P.J., Gorski, Martoche, Pine and Lawton, JJ.