Atomic Development & Machine Corp. v. De Stefano

Defendant’s insurer unequivocally disclaimed liability to defend, prior to the commencement of this action or any attempted service of process herein, and, while now moving to vacate service, declines to appear generally on defendant’s behalf or its own. As a consequence, said insurer lacks standing to make such a challenge. The fact that the Civil Court issued an ex parte order authorizing substituted service upon defendant which included mailing of process in care of said insurer, does not, ipso facto, give this insurer independent standing to challenge the propriety of such service. Having disclaimed liability, this insurer may not claim to be aggrieved by any judgment rendered herein, whether by default or otherwise. Therefore, this court does not reach the substantive questions presented but affirms the denial of the insurer’s motion to vacate service on the sole ground of lack of standing of the movant.

The order should be affirmed, with $10 costs.

(dissenting). I dissent. This action was commenced by service of the summons and complaint on the insurance carrier by a court order pursuant to CPLR 308 (subd. 4). This cast the carrier in the position of an involuntary agent for the service of the summons and complaint. The only question on the motion is service, and the involuntary position of the carrier gives it all the status it needs to contest the imposed status. What may be done by the insurer in an action for a declaratory judgment, or otherwise, is not actually relevant. After the carrier has opposed the service in the framework of its limited status as agent for service, it still may stand on its disclaimer which may not come into question, indeed, until there has been action by a judgment creditor under the Insurance Law, or otherwise.

*212The matter of service should be decided now on the merits. Because notice of the service as made is not within due calculation, the service is bad (see Winterstein v. Pollard, 50 Misc 2d 354) and I would reverse and grant the motion.

Streit and Hecht, JJ., concur; Gold, J. P., dissents with memorandum.

Order affirmed, with $10 costs.