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ELIZABETH L. ELIAS ET AL. v. TRACY LEE ET AL. (04/24/68)
CIVIL COURT OF THE CITY OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY
1968.NY.41370 <http://www.versuslaw.com>; 291 N.Y.S.2d 254; 56 Misc. 2d 1062
April 24, 1968
ELIZABETH L. ELIAS ET AL., PLAINTIFFS,v.TRACY LEE ET AL., DEFENDANTS
Martin Rosen for defendants.
Robert G. Sheller for Motor Vehicle Accident Indemnification Corporation, intervening in opposition to defendants' motion.
Tell, Cheser, Werner & Breitbart (Marshall Blumenfeld of counsel), for plaintiffs.
Allen Murray Myers, J.
The motion of the attorney for the defendants for leave to withdraw from the defense of the action is denied, without prejudice to the prosecution of a plenary action to disclaim in which all parties to the action are before the court (cf. Ganas v. Terry, 16 A.D.2d 826).
The moving attorney was retained by his principal, Canal Insurance Company of Greenville, South Carolina, the insurer of the defendant Joe Cheung, to represent the defendants in this action for personal injuries commenced against them by plaintiffs Elizabeth L. Elias and Maurice Elias.
The insurer, claiming that the defendants waited an unreasonably long time to report the happening of the accident and considering itself prejudiced, commenced an action to disclaim in the United States District Court for the District of Idaho, Central Division, against their assured and the driver of the vehicle. The United States District Court after hearing the matter granted judgment in favor of the insurer.
In granting the judgment the court made specific findings that as to Elizabeth L. Elias, Maurice Elias and Motor Vehicle Accident Indemnification Corporation, the defendants named in the action to disclaim, the action was dismissed for lack of process conferring jurisdiction. In view of those findings the judgment allowing the disclaimer is not res judicata and is a nullity with respect to the plaintiffs and MVAIC (Matter of Law, 56 App. Div. 454; Hanna v. Stedman, 230 N. Y. 326; Van Buren v. Harrison, 164 Misc. 774; National Grange Mut. Ins. v. Ogassian, 45 Misc. 2d 729).