FILED: QUEENS COUNTY CLERK 03/29/2019 11:02 AM
`NYSCEF DOC. NO. 20
`
`INDEX NO. 712223/2018
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`RECEIVED NYSCEF: 03/29/2019
`
`Short Form Order
`NEW YORK SUPREME COURT - QUEENS COUNTY
`Present: HONORABLE CARMEN R. VELASOUEZ IA Part 38
`Justice
`
`FRANCES MELIA,
`
`Plaintiff,
`
`-against-
`COUNTRY-WIDE INSURANCE COMPANY,
`Defendant.
`
`Index
`Number 712223 2018
`Motion
`Date January 28, 2019
`Motion Seq. N
`
`The following numbered papers read on this motion by defendant
`Country-Wide Insurance Company (Country-Wide) to dismiss the
`complaint on either the basis that plaintiff lacks standing to
`commence this declaratory judgment action under CPLR 3211(a)(3) or
`that a prior action is pending under CPLR 3211(a)(4) or,
`alternatively, for dismissal of the claim for punitive damages
`pursuant to CPLR 3211(a)(7).
`
`Papers
`Numbered
`Notice of Motion - Affidavits - Exhibits EF 2-10
`Answering Affidavits - Exhibits EF 15-17
`Reply Affidavits EF 18
`Upon the foregoing papers it is ordered that the motion is
`determined as follows:
`This matter arises out of a motor vehicle accident that
`occurred in 2014, in which plaintiff Frances Melia(Melia), a
`pedestrian, was seriously injured. Melia commenced a negligence
`action in this court under Index No. 708307/15 (2015 action)
`against Biswanan Jagmohan (Jagmohan), the owner and operator of the
`truck involved in the incident. That vehicle was insured by
`Country-Wide under a liability policy with a coverage limit of
`$25,000 per person. A separate action commenced by Melia against
`additional defendants was consolidated with the 2015 action
`pursuant to a so-ordered stipulation dated March 16, 2016, at which
`time Country-Wide became a defendant in the 2015 action. .
`Thereafter, Justice Kevin J. Kerrigan in an order dated
`March 14, 2018, denied a motion by Melia and cross motion by
`Country-Wide for declaratory relief in the 2015 action, as the
`claims alleged sounded in negligence and fraud. An insurance
`coverage issue was raised in that pleading and by order dated
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`FILED: QUEENS COUNTY CLERK 03/29/2019 11:02 AM
`NYSCEF DOC. NO. 20
`
`INDEX NO. 712223/2018
`
`RECEIVED NYSCEF: 03/29/2019
`
`March 14, 2018, Country-Wide's separate motion for severance was
`granted. On April 20, 2018, Country-Wide commenced a declaratory
`,judgment action against Melia and Jagmohan in the Supreme Court,
`New York County, under Index No. 153639/18. On August 7, 2018,
`Melia commenced this declaratory judgment action in Queens Supreme
`Court. By order dated September 20, 2018, defendant Melia's motion
`to change venue of the New York County action to Queens County was
`granted and later affirmed by the Appellate Division, First
`Department by order entered on February 7, 2019.
`In the interim, on May 2, 2018, a jury verdict was reached in
`the 2015 action and later set aside by order of Justice
`Richard G. Latin dated July 30, 2018. The jury found Jagmohan
`negligent, but not a substantial factor in causing the accident.
`The court in its order directed the verdict in favor of plaintiff
`to the extent that defendant Jagmohan was a proximate cause of the
`accident and ordered the case proceed to a damages trial that
`encompassed the issues of comparative fault of the parties. On
`October 31, 2018, the second trial resulted in a verdict against
`Jagmohan in the amount of $800,000. Court records indicate that
`motion sequence number 20, originally returnable on January 31,
`2019, by defendant Jagmohan to set aside the current verdict has
`yet to be submitted.
`Country-Wide presently contends that plaintiff has not
`satisfied a condition precedent necessary to seek direct relief
`against Country-Wide under Insurance Law § 3420(a)(2). An action
`against an insurer of a tortfeasor cannot be maintained unless a
`judgment against the insured shall remain unsatisfied for a period
`of thirty days from the service of notice of entry of the judgment.
`While a jury verdict has been awarded in favor of Melia in the sum
`of $800,000, a judgment has not been entered and a motion to set
`aside the verdict has been made. In the instant case, Melia is not
`in privity with Country-Wide and may only pursue a direct action
`against an insurance carrier under the strict parameters of
`Insurance Law § 3420(a)(2). Clearly, Melia's action for a
`declaratory judgment is premature based on a lack of standing and,
`thus, warrants dismissal. (See Lang v Hanover Ins. Co., 3 NY3d 350
`[2004]; Azad v Capparelli, 51 AD3d 956 [2d Dept 2008]; cf Batista
`v Global Liberty Ins. Co. of N.Y., 135 AD3d 797 [2d Dept 2016].)
`Accordingly, this action is dismissed and all other requests
`for relief are denied as moot.
`
`Dated: March.gb, 2019
`
`FILED
`
`MAR 2 9 2019
`COUNTY CLERK
`QUEENS COUNTY
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