Summary
holding where a personal injury victim brings a declaratory judgment action to determine whether a liability insurer is obligated to defend or indemnify its insureds - the employer and its employee - the active tort-feasors, the failure to name the insured employee as a defendant required dismissal of the complaint with prejudice
Summary of this case from Cnty. of Niagara v. Liberty Mut. Ins. Co.Opinion
June 16, 1997
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is reversed, on the law, with costs, and the complaint is dismissed without prejudice to the commencement of a new action joining Raphael Torres as a party defendant.
Where an injured party brings a declaratory judgment action to determine whether an insurance carrier is obligated to defend or indemnify its insureds, both the insurer and the insureds are necessary parties to the action (see, White v Nationwide Mut. Ins. Co., 228 A.D.2d 940; Newsom v. Republic Fin. Servs., 130 Misc.2d 780, 781-782; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3001:10, at 439). The plaintiff failed to name Raphael Torres, an insured under the disputed policy and the active tortfeasor. This was error because Torres's rights "might be inequitably affected by a judgment in [this] action" (CPLR 1001 [a]). Accordingly, the complaint is dismissed without prejudice to the commencement of a new action joining Raphael Torres as a party defendant.
O'Brien, J.P., Thompson, Pizzuto and Friedmann, JJ., concur.