Bittrolff v. Continental Insurance , 622 N.Y.S.2d 690 ( 1995 )

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered November 3, 1993, in favor of plaintiff and against defendant in the amount of $78,823.49, plus interest, costs and disbursements, and bringing up for review an order, same court and Justice, entered the same date, which,. in a direct action against defendant insurer pursuant to Insurance Law § 3420 (a) (2), granted plaintiffs motion for summary judgment for the full amount of the judgment entered in his favor in the underlying action, and denied defendant’s cross-motion for a declaration that its liability is limited to the equitable share of the judgment against its insured in the underlying action, unanimously affirmed, without costs.

CPLR article 16 does not limit defendant’s liability to the 35% share apportioned against its insured in the underlying action, where, although the claim against defendant’s insured was asserted by an amended complaint after the effective date of article 16, the commencement of the action against other defendants preceded such date (see, Noble v Ambrosio, 151 Misc 2d 276, 282). To hold otherwise would in certain cases lead to the disparate application of both CPLR article 16 and joint and several liability in the same action. We have considered defendant’s other contentions and find them to be without merit. Concur—Murphy, P. J., Rosenberger, Nardelli and Williams, JJ.