Llano v Leading Ins. Servs., Inc.

[*1] Llano v Leading Ins. Servs., Inc. 2014 NY Slip Op 51648(U) Decided on November 21, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570492/14

Maria Llano, Plaintiff-Appellant,

against

Leading Insurance Services, Inc., and LG Insurance Co., Limited and Leading Insurance Group., Defendant-Appellant.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), dated December 18, 2013, which denied her motion to compel the deposition of defendants' principal and granted defendants' CPLR 3211 cross motion to dismiss the complaint.

Per Curiam.

Order (Frank P. Nervo), dated December 18, 2013, affirmed, with $10 costs.

Plaintiff previously commenced a negligence action seeking damages for personal injuries allegedly sustained in a slip and fall in front of building premises owned and operated by various entities (hereinafter "the alleged tortfeasors") who are not named as parties defendant in the present action. The earlier action was "settled and discontinued with prejudice" by way of a written stipulation dated November 20, 2012. Plaintiff thereafter commenced the within action against defendants, the alleged tortfeasors' insurer, seeking the payment of "medical bills she incurred because of her injuries" sustained in the underlying slip and fall accident.

We agree that defendants demonstrated entitlement to judgment dismissing the complaint. Plaintiff, a stranger to the policy of insurance between defendants and their insureds, has no direct cause of action against defendants in these circumstances where no judgment has been obtained against the alleged tortfeasors (see Insurance Law § 3420[b][1]; Lang v Hanover Ins. Co., 3 NY3d 350, 354 [2004]; Santa v Capitol Specialty Ins., Ltd., 96 AD3d 638, 639 [2012]). Nor was plaintiff shown to be an intended beneficiary of the insurance policy at issue (see Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 33 [1979], affd 49 NY2d 924 [1980]).

Although defendants did not specifically list CPLR 3211(a)(7) on their notice of cross motion to dismiss, which was based on other subdivision of CPLR 3211(a), the general relief clause in the notice of cross motion permitted the court to consider this alternative ground for granting defendants' cross motion (see Kreamer v Town of Oxford, 96 AD3d 1130 [2012]; Tirado v Miller, 75 AD3d 153, 158 [2010]), where the relief was supported by defendants' proof and plaintiff suffered no legal prejudice (see Frankel v Stavsky, 40 AD3d 918 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 21, 2014