Opinion
January 4, 2000
Order, Supreme Court, New York County (Lorraine Miller, J.), entered November 12, 1998, which, to the extent appealed from, denied defendant's motion to dismiss the complaint without prejudice to renewal upon compliance with Insurance Law § 1213 and granted plaintiff's cross motion to require defendant to post pre-answer security, pursuant to Insurance Law § 1213, in the amount of $4,835,333.99, unanimously affirmed, without costs.
Steven R. Harris, for plaintiff-respondent.
Adam P. Friedman Eugene J. Schlitz, for defendant-appellant.
ROSENBERGER, J.P., WILLIAMS, LERNER, SAXE, BUCKLEY, JJ.
Defendant's motion to dismiss, which invited the court to treat as a summary judgment motion, constitutes a "pleading" within the meaning of Insurance Law § 1213(c)(1), thereby triggering the requirement that defendant post an undertaking (cf., Brown v. Sec. Union Title Ins. Co., 192 A.D.2d 386). Adoption of a contrary interpretation, permitting a foreign unauthorized insurer to contest the merits of a claim without posting security, would be contrary to the legislative purpose and policy behind the statute (see,Insurance Law § 1213(a) ; Curiale v. Ardra Ins. Co., 88 N.Y.2d 268, 277-278). The court properly set the amount of the bond in the amount claimed by plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.