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Twin City Fire Insurance Co. v. State Insurance Fund

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


September 24, 2009

TWIN CITY FIRE INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
STATE INSURANCE FUND, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered on May 7, 2008, which granted plaintiff's motion for summary judgment and denied defendant's cross motion to dismiss the complaint, unanimously reversed, on the law, with costs, the motion denied, the cross motion granted, and the complaint dismissed, without prejudice. The Clerk is directed to enter judgment accordingly.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Sweeny, McGuire, DeGrasse, Freedman, JJ.

116986/04

Plaintiff sought defendant's assumption of its defense and indemnity in an underlying personal injury action, and contribution of 50% toward the costs of defending and settling that action. Although denominated an action for declaratory relief, this is essentially an action to recover money damages against a State agency, the proper forum for which is the Court of Claims (D'Angelo v State Ins. Fund, 48 AD3d 400, 402 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090924

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