Opinion
July 22, 1974
In an action against a motor vehicle liability insurer, by one whose judgment against the insured for personal injuries remains unsatisfied and who is the insured's assignee, to recover (1) the applicable monetary limit of the coverage and (2) an additional amount for bad faith failure to defend the insured, plaintiff appeals from an order of the Supreme Court, Kings County, dated October 2, 1973, which denied his motion to dismiss defendant's counterclaim and affirmative defenses. Order affirmed, with $20 costs and disbursements. No opinion. Martuscello, Cohalan, Brennan and Munder, JJ., concur; Hopkins, Acting P.J., dissents and votes to modify the order to the extent of granting plaintiff's motion to dismiss the affirmative defenses, and to affirm the order as so modified, with the following memorandum: The affirmative defenses interposed bear no relationship to plaintiff's contract action for defendant's alleged bad faith refusal to defend its insured (plaintiff's assignor), and accordingly it was error not to have dismissed the defenses.