Opinion
June 7, 1982
In an action for a declaratory judgment, defendants appeal from a judgment of the Supreme Court, Kings County (Leone, J.), entered May 11, 1981, which declared that certain insurance policies issued by them were valid and binding and that plaintiff is entitled to legal representation and insurance coverage in a third-party action wherein he was named as a third-party defendant ( Yankelevitz v. Royal Globe Ins. Co., 107 Misc.2d 636). Judgment reversed, on the law, without costs or disbursements, and it is declared that the defendants are not required to defend or indemnify plaintiff in the pending third-party action. Subdivision 3 of section 167 Ins. of the Insurance Law is constitutional (see Crilley v. Allstate Ins. Co., 15 N.Y.2d 821, 822-823; Matter of Higby v. Mahoney, 48 N.Y.2d 15, 18-19; Lauer v. Claffey, 52 A.D.2d 275, 277). Arguments as to its alleged unfairness and that it may have "become repugnant to the intent of the Legislature" ( Yankelevitz v. Royal Globe Ins. Co., 107 Misc.2d 636, 642, supra), because of pro-consumer legislation enacted since 1937, are best reserved for the Legislature (see Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 781-782; Becker v Schwartz, 46 N.Y.2d 401, 412). Damiani, J.P., Mangano, Gulotta and Niehoff, JJ., concur. [ 107 Misc.2d 636.]