Raskin v. Nassau Insurance ( 1983 )

— Order,. Supreme Court, New York County (Klein, J.), entered August 31, 1981 denying defendant Avon’s motion to dismiss the complaint, unanimously reversed, on the law, with costs and disbursements, and the motion granted with leave to plaintiffs to apply at Special Term for permission to serve an amended complaint. Plaintiffs, a professional corporation engaged in the practice of law and one of its officer attorneys, sue for a declaration that defendants, ostensibly its professional liability insurers, are obligated to defend and indemnify with respect to a malpractice action instituted against them by a former client. The complaint fails, however, for reasons we suspect are not inadvertent, to allege that movant Avon ever issued a policy or had any obligation to do so. The only allegation against Avon is that it is “authorized to engage in and maintain an insurance business in the State of New York”, hardly a basis for the imposition of liability. It appears from our perusal of the record that Avon was, at most, an excess line broker, not an insurer. In any event dismissal is required for failure to state a cause of action since the only liability sought to be imposed against Avon is as an insurer. Our dismissal, however, is without prejudice to an application for leave to serve an amended complaint, upon a showing of merit with respect to any cause of action proposed to be asserted against Avon (see Levine Corp. v Gimbel Accessories, 41 AD2d 637; East Asiatic Co. v Corash, 34 AD2d 432), either as an insurer or broker. Concur — Murphy, P. J., Sullivan, Carro, Milonas and Alexander, JJ.