Opinion
July 16, 1968
Order, entered on August 28, 1967, denying defendant MVAIC's motion to dismiss the complaint herein, unanimously reversed on the law, with $50 costs and disbursements to defendant-appellant against plaintiff, and complaint dismissed as against MVAIC. MVAIC is not a proper party to this action. Plaintiff, Allsate Insurance Company, issued the policy of insurance, which is involved herein, subsequent to July 1, 1965, and, accordingly, claimants' relief as "insured" persons is against Allstate and not MVAIC (Insurance Law, § 167, subd. 2-a; § 605, subd. [a]). Special Term erred in holding that MVAIC "may become liable if Allstate Insurance Company succeeds in its disclaimer", and in relying upon the case of Mayes v. Darby ( 38 Misc.2d 979). Allstate's disclaimer cannot convert the status of the claimants from "insured" to "qualified" persons, and the case cited by Special Term does not represent the law in this Department ( Matter of Knickerbocker Ins. Co. [ Faison], 28 A.D.2d 1209; Matter of Edwards [ MVAIC], 25 A.D.2d 420).
Concur — Eager, J.P., Capozzoli, McGivern, Rabin and McNally, JJ.