Volkots v. Blue Cross of Western New York, Inc.

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Supreme Court properly concluded that plaintiff was not a third-party beneficiary under an individual insurance contract between defendant and plaintiff’s deceased husband; therefore, plaintiff did not have the right to enforce the contract (see, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 44; Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 79). However, Supreme Court erred by conditionally granting defendant’s motion to dismiss the complaint. The complaint should have been dismissed without condition. (Appeals from Order of Supreme Court, Erie County, Doyle, J.—Dismiss Complaint.) Present—Callahan, A- P. J., Doerr, Boomer, Balio and Láwton, JJ.