The New York Court of Appeals this Tuesday, October 12, 2004, will address whether a plaintiff must obtain a judgment against an underlying tortfeasor before commencing a declaratory judgment action against an insurer. The Appellate Division, Third Department in Lang v. Hanover Ins. Co. held that the declaratory judgment action that the plaintiff-injured party commenced was premature because he did not obtain a judgment against the underlying tortfeasor.
The plaintiff relies on precedent from the Appellate Division, Second Department, which holds that an interested party – including a plaintiff in a personal injury suit – is not required to obtain a judgment on damages before bringing a declaratory judgment action to determine whether an insurer must provide coverage. The Second Department has interpreted Insurance Law section 3420 as governing only direct actions against insurers to recover money damages, not declaratory judgment actions.
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