Eveready Insurance v. DeLeon

—In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify its insured in an underlying personal injury action entitled Downes v DeLeon, pending in Supreme Court, Queens County, the plaintiff appeals from an order of the Supreme Court, Queens County (Golia, J.), dated April 5, 2001, which denied its cross motion for summary judgment and granted the respective motion and cross motion of the defendants Travelers Property Casualty Insurance Company and Kenneth Rodriguez for summary judgment declaring that the plaintiff is obligated to defend and indemnify its insured in the underlying action. Ordered that the order is reversed, on the law, with one bill of costs, the respondents’ respective motion and cross motion are denied, the plaintiffs cross motion is granted, and the mat 537 ter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the appellant is not obligated to defend or indemnify its insured in the underlying personal injury action. Contrary to the Supreme Court’s determination, the appellant properly and timely mailed the notice of disclaimer to the attorney of record for the plaintiff in the underlying action despite information that the plaintiff had retained new counsel. Because the appellant was not in receipt of a duly-executed consent to change attorney form or court order substituting counsel in accordance with CPLR 321, it was proper to mail the notice of disclaimer to the attorney of record (see, Moustakas v Bouloukos, 112 AD2d 981; see also, Candeloro v Candeloro, 133 AD2d 731). Since this is a declaratory judgment action, the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the appellant is not obligated to defend or indemnify its insured in the underlying personal injury action (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Bracken, P. J., Luciano, Feuerstein and Adams, JJ., concur.