Seye v. Sibbio

• Decision Date: 03 October 2006
• Docket Number: 2006-01664.
• Citation: Seye v. Sibbio, 33 AD3d 608, 821 N.Y.S.2d 473, 2006 NY Slip Op 7160 (N.Y. App. Div. 2006)
• Parties: ASHELIE SEYE et al., Plaintiffs, v. RALPH SIBBIO, Respondent, et al., Defendant. McGIVNEY & KLUGER, P.C., Nonparty Appellant.
• Court: New York Supreme Court — Appellate Division

33 A.D.3d 608

821 N.Y.S.2d 473

2006 NY Slip Op 07160

ASHELIE SEYE et al., Plaintiffs, v. RALPH SIBBIO, Respondent, et al., Defendant McGIVNEY & KLUGER, P.C., Nonparty Appellant.

2006-01664.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided October 3, 2006.

In an action to recover damages for personal injuries, etc., McGivney & Kluger, P.C., the attorney of record for the defendant Ralph Sibbio, appeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated January 9, 2006, which denied its motion for leave to withdraw as his counsel.

Ordered that the order is affirmed, with costs.

"It is settled law in this State that a motion to withdraw as counsel is a poor vehicle to test an insurer's right to disclaim liability or deny coverage" (Monaghan v Meade, 91 AD2d 1014, 1015 [1983]; see Brothers v Burt, 27 NY2d 905, 906 [1970]; Rusolo v Skate Odyssey, 109 AD2d 875 [1985]; cf. Dillon v Otis El. Co., 22 AD3d 1 [2005]). Rather "[t]he appropriate vehicle for resolving a dispute over the coverage offered by a policy is a declaratory judgment action in which the [insured] would be able to adequately litigate the facts of the insurance carrier's disclaimer" (Pryer v DeMatteis Orgs., 259 AD2d 476, 477 [1999]; see Sojka v 43 Wooster LLC, 19 AD3d 266, 267 [2005]; Garcia v Zito, 242 AD2d 258, 259 [1997]; Laura Accessories v A.P.A. Warehouses, 140 AD2d 182 [1988]).

Adams, J.P., Krausman, Fisher and Dillon, JJ.,...