Garcia v. Zito

In an action to recover damages for personal injuries caused during an alleged assault, nonparty Gladstein [259] & 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 NY2d 905; Monaghan v Meade, 91 AD2d 1014, 1015; Laura Accessories v A.P.A. Warehouses, 140 AD2d 182; cf., Dordal v Laces Roller Corp., 143 AD2d 727; Cullen v Olins Leasing, 91 AD2d 537, 538). The right of an insurer to deny coverage “can only be resolved by a declaratory judgment action in which the defendant would be able to adequately litigate the facts of [the insurance company’s] disclaimer” (Laura Accessories v A.P.A. Warehouses, supra, at 182). Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.