Garcia v. Zito

• Decision Date: 04 August 1997
• Citation: Garcia v. Zito, 661 N.Y.S.2d 33, 242 A.D.2d 258 (N.Y. App. Div. 1997)
• Parties: , 1997 N.Y. Slip Op. 7048 Marc Anthony GARCIA, Respondent, v. Anthony ZITO, et al., Defendants; Gladstein & Isaac, Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

Page 33

661 N.Y.S.2d 33

242 A.D.2d 258, 1997 N.Y. Slip Op. 7048

Marc Anthony GARCIA, Respondent, v. Anthony ZITO, et al., Defendants Gladstein & Isaac, Nonparty Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 4, 1997.

Gladstein & Isaac, New York City, (Allen H. Isaac, Brian J. Isaac, and Emily Diamond, of counsel), nonparty appellant pro se.

Philip W. Rogers, Holtsville, (Eric Besso, of counsel), for respondent.

Before RITTER, J.P., and SULLIVAN, ALTMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries caused during an alleged assault, nonparty Gladstein & Isaac, the attorney of record for the defendant Club South Inc., d/b/a Phases, appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated June 5, 1996, which denied its motion for leave to withdraw as counsel for that defendant.

ORDERED that the order is affirmed, with costs.

The court correctly denied the appellant's motion to withdraw as counsel as an improper attempt to test the attempted disclaimer of coverage by the insurer of the defendant Club South Inc., d/b/a Phases (see, Brothers v. Burt, 27 N.Y.2d 905, 317 N.Y.S.2d 626, 265 N.E.2d 922; Monaghan v. Meade, 91 A.D.2d 1014, 1015, 457 N.Y.S.2d 886; Laura Accessories v. A.P.A. Warehouses, 140 A.D.2d 182, 527 N.Y.S.2d 795; cf., Dordal v. Laces Roller Corp., 143 A.D.2d 727, 533 N.Y.S.2d 291; Cullen v. Olins Leasing, 91 A.D.2d 537, 538, 457 N.Y.S.2d 9). The right of an insurer to deny coverage "can only be resolved by a declaratory judgment action in which the defendant...