| Nick's Garage, Inc. v Liberty Mut. Fire Ins. Co. |
| 2014 NY Slip Op 05739 [120 AD3d 967] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Nick's Garage, Inc., Respondent, v Liberty Mutual FireInsurance Company, Appellant. (Appeal No. 1.) |
Jaffe & Asher LLP, New York City (Marshall T. Potashner of counsel), fordefendant-appellant.
Bousquet Holstein PLLC, Syracuse (Cecelia R.S. Cannon of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (James P. Murphy,J.), entered June 10, 2013. The order denied the motion of defendant to dismiss in partplaintiff's second amended complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiffs in these two appeals operate automobile repair shops, andthey commenced these actions to recover payment for repairs performed on behalf ofvarious assignors, including persons involved in accidents with defendant's insureds(see generally 11 NYCRR 216.7 [a] [2]). Insofar as relevant in each appeal,plaintiffs asserted causes of action for quantum meruit and the violation of GeneralBusiness Law § 349, which prohibits deceptive business practices. Inappeal Nos. 1 and 2, defendant moved to dismiss those causes of action in the secondamended complaint and the amended complaint, respectively, on the ground thatplaintiffs lacked standing under Insurance Law § 3420 because theirassignors were strangers to the underlying insurance policies. Supreme Court denied bothmotions. We now affirm.
When the plaintiff is a stranger to the underlying insurance policy, "Insurance Law§ 3420 . . . grants [him or her] a right to sue the tortfeasor'sinsurer, but only under limited circumstances—[he or she] must first obtain ajudgment against the tortfeasor, serve the insurance company with a copy of thejudgment and await payment for 30 days. Compliance with th[o]se requirements is acondition precedent to a direct action against the insurance company" (Lang v Hanover Ins. Co., 3NY3d 350, 354 [2004]). That condition precedent, however, applies only when thedirect action seeks relief "under the terms of the [insurance] policy or contract"(§ 3420 [a] [2]).
Here, the causes of action for quantum meruit and deceptive business practices donot seek relief "under the terms of the [insurance] policy or contract." Rather, thosecauses of action raise distinct legal theories that are independent of the policy terms.Thus, contrary to defendant's contention in both appeals, Insurance Law§ 3420 does not bar plaintiffs' causes of action for quantum meruit anddeceptive business practices, and the court therefore properly denied the motions todismiss insofar as they were premised on that ground (see Nick's Garage, Inc. v StateFarm Gen. Ins. Co., 2013 WL 718323, *10, 2013 US Dist LEXIS 26654, *27-28[ND NY 2013]; see generally First State Ins. Co. v J & S United AmusementCorp., 67 NY2d 1044, 1046 n [1986]; McNamara v Allstate Ins. Co., 3AD2d 295, 298 [1957]).
Defendant's remaining contentions in each appeal were raised for the first time in its[*2]reply papers, and it is "well settled that contentionsraised for the first time in reply papers are not properly before [us]" (Jacobson vLeemilts Petroleum, Inc., 101 AD3d 1599, 1600 [2012]).Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ.