LoPiccolo v. County of Suffolk , 706 N.Y.S.2d 888 ( 2000 )

—In an action, inter alia, for a judgment declaring that the defendant is obligated to provide the plaintiff with a defense in an action commenced against her in the United States District Court for the Eastern District of New York, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), entered May 12, 1999, as denied its motion to dismiss the amended complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the amended complaint is dismissed.

The plaintiff’s challenge to the defendant’s refusal to provide her with a defense in a Federal civil rights action must be made in a timely proceeding pursuant to CPLR article 78 (cf., Frontier Ins. Co. v State of New York, 87 NY2d 864, 866-867). This action, commenced 10 months after the determination to deny the plaintiff a defense, is therefore time-barred (see, CPLR 217 [1]).

In light of our determination, we do not reach the defendant’s claim that the amended complaint failed to state a cause of action. Ritter, J. P., S. Miller, McGinity and Feuerstein, JJ., concur.