| Crummell v Avis Rent A Car Sys., Inc. |
| 2009 NY Slip Op 04022 [62 AD3d 825] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Clarence Crummell, Appellant, v Avis Rent A Car System,Inc., Respondent. |
—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (David F. Kluepfel of counsel), forrespondent.
In an action for a judgment declaring, in effect, that the defendant is obligated to provide theplaintiff with certain "additional liability insurance" coverage pursuant to the parties' automobilerental agreement, dated June 10, 2006, the plaintiff appeals from an order of the Supreme Court,Queens County (Satterfield, J.), dated June 2, 2008, which granted the defendant's motion todismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7), andfor failure to join a necessary party, pursuant to CPLR 3211 (a) (10).
Ordered that the order is reversed, on the law, with costs, that branch of the defendant'smotion which was to dismiss the complaint for failure to state a cause of action, pursuant toCPLR 3211 (a) (7), is denied, and that branch of the defendant's motion which was to dismiss thecomplaint for failure to join a necessary party, pursuant to CPLR 3211 (a) (10), is denied oncondition that the plaintiff shall join as a party defendant hereto Thomas Pinkerton, a defendantin an underlying action entitled Crummell v Pinkerton, pending in the Supreme Court,Queens County, under index No. 23289/06; and it is further,
Ordered that the time for the plaintiff to join Thomas Pinkerton as a party defendant to thisaction as shall be within 30 days of service upon him of a copy of this decision and order.
The Supreme Court erred in granting that branch of the defendant's motion which was todismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7), due tothe [*2]plaintiff's failure to comply with Insurance Law §3420 (a) (2). That provision governs the right of an injured party who is a stranger to aninsurance contract to maintain a direct action against the tortfeasor's insurer (see Lang v Hanover Ins. Co., 3 NY3d350, 353-354 [2004]). It does not apply where, as here, a signatory to a contract seeks adeclaration of his rights with respect to another contracting party (see CPLR 3001; Lang v Hanover Ins. Co., 3 NY3d350, 353 [2004]).
While the Supreme Court correctly concluded that Thomas Pinkerton is a necessary party tothis action (see CPLR 1001 [a]; cf. Bello v Employees Motor Corp., 240 AD2d527 [1997]), under the circumstances presented, the plaintiff should have been given anopportunity to rectify his failure to join him (see Stevens v Eaton, 267 AD2d 450,450-451 [1999]).
The Supreme Court should not have considered, and we do not consider, the defendant'sremaining contention, because the defendant improperly raised it for the first time in its replypapers in the Supreme Court (see Luft vLuft, 52 AD3d 479, 480 [2008]; Medugno v City of Glen Cove, 279 AD2d 510,511-512 [2001]). Spolzino, J.P., Fisher, Miller and Balkin, JJ., concur.