Defendant moves pursuant to CPLR § 2201 and Article 74 of New York Insurance Law for an order staying plaintiffs' cause of action. Plaintiffs opposes the motion.

On June 12, 2003, plaintiffs filed a summons and complaint with the Kings County Clerk's office. The complaint alleges that on December 8, 2001, the defendant's vehicle struck and injured the plaintiffs. It is undisputed that police responded to the scene of the accident, conducted an investigation and prepared a police accident report (MV104) of the incident. The defendant attached the relevant police accident report to the instant motion. The data contained therein states that on December 8, 2001, at 9:16 pm, Yuriy Klubok was driving Tanya Gitman, in her 1995 Pontiac sedan east bound on Cropsy Avenue approaching Bay 16th Street in Brooklyn and defendant was driving his 1993 Mazda directly behind them. While the plaintiffs were stopped in heavy traffic, defendant's vehicle struck the rear of plaintiff's vehicle causing injury to Tanya Gitman. On September 17, 2003, defendant answered the complaint.

Plaintiffs are married and reside in Kings County, New York. Defendant resides in Virginia. At the time of the collision, defendant was insured under a policy issued by Superior Insurance Company (hereinafter Superior). Superior is a corporation authorized as an insurer in the state of Florida. On August 29, 2003, the Circuit Court of the Second Judicial Circuit for Leon County, Florida, appointed the Department of Financial Services of the State of Florida as receiver for Superior for the purpose of rehabilitation. The order was issued on consent and pursuant to Section 631.041 of the Florida Statutes.

Section 631.041 of the Florida Statutes provides in pertinent part that an application or petition under § 631.031 operates as a matter of law as an automatic stay, applicable to all persons and entities, other than the receiver, ... which prohibits the commencement or continuation of judicial, administrative, or other action or proceeding against the insurer [*2]or against its assets

In 1939, the National Conference of Commissioners on Uniform State Laws endeavored to resolve some of the complexities of liquidating an insolvent insurance company with assets in multiple states by approving the Uniform Insurers Liquidation Act (UILA). New York adopted the UILA in 1940 "with the main purpose in mind of providing a uniform system for the orderly and equitable administration of the assets and liabilities of defunct multi-state insurers" (Levin v. National Colonial Ins. Co., 1 NY3d 350-356 [2004]).

The Uniform Insurers Liquidation act as adopted by New York State is contained within §§7408 through 7415 of the New York State Insurance Law. Insurance Law §7408(b)(2) defines a delinquency proceeding as any proceeding commenced against an insurer for the purposes of liquidating, rehabilitating, reorganizing, or conserving such insurer. Insurance Law §7408(b)(6) defines a reciprocal state as any state other than this state in which, in substance and effect, the provisions of this act are in force, including the provisions requiring that the insurance commissioner or equivalent insurance supervisory official be the receiver of a delinquent insurer.

CPLR § 2201 provides that except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.

Defendant contends that Insurance Law §§7408 through 7415 supports a stay of plaintiffs' cause of action for personal injuries due to the placement into receivership of defendant's insurer in the state of Florida. Defendant further contends that New York is a reciprocal state pursuant to Insurance Law §7408(b)(6) and should honor the stay ordered August 29, 2003 by the Circuit Court of the Second Judicial Circuit for Leon County, Florida.

Plaintiffs do not dispute that Superior is in rehabilitation and that the order of the aforementioned Florida court stays all persons and entities, other than the receiver, from commencing or continuing judicial, administrative or other proceedings against the insurer or against its assets. Instead, plaintiffs contends that the stay is not applicable because their cause of action is against the defendant and not against his insurer or the insurer's assets. In support of this contention plaintiffs cite Payroll Transfer Interstate v. Forshey, 694 So. 2nd 80 [Dist. Ct. App. 1997].

In the Payroll v. Forshey case, an employer that was being sued by an injured employee moved for a stay on the ground that its workers' compensation insurer was in delinquency proceedings. The motion was denied by the trial court. The District Court of Appeal affirmed, holding that Section 631.041 does not apply to actions against the insured individual or entity. The court explained:

"Section 631.041 only stays proceedings against the insurer or its assets, see Jimmy Lang's Auto Service v. Proctor 667 So. 2d 334, 334-335 (Fla.1st DCA 1995)(only the insurer is protected by the provisions of Section 631.041(1)(a) ...The claimant's action against the employer was not an action against the insurer or the assets of the insurer...The employer, who was the insured under the policy of workers' compensation insurance, is not entitled to the protection of the stay provision contained in section 631.041." (Payroll Transfer Interstate v. Forshey, supra 694 SO.2d at 82).

The ruling in Payroll v. Forshey was followed in two subsequent Florida decisions, Payroll Transfers Institute v. Carfi, 695 So.2d 497 (Dist. Ct. App. 1997) and Staffing Concepts International v. Paul, 704 So.2d 691, 692 n. 1 (Dist. Ct. App. 1997).

Defendant argues that a judgment obtained against the defendant will adversely effect the rehabilitation of Superior. Defendant offered as supporting precedent a decision and order by Nassau County Supreme Court Justice Michele M..Woodard which granted a stay based on the exact same grounds asserted in the instant motion. The decision and order was attached as an exhibit to defendant's memorandum of law. It is noted that the aforementioned decision and order was granted on the defendant's unopposed motion. It is also noted, that notwithstanding the plaintiff's lack of opposition, the court, nevertheless, granted only a limited stay ending no later than one year from the date of the order. The court limited the stay citing Haenel v. November & November 144 AD2d 298 [1st Dept 1988]. In the Haenel case, the Appellate Division First Department articulated its disfavor with continuing, open ended stays whose vacatur is conditioned on events over which the court has no control. Such an open ended stay is precisely the kind which defendant seeks here.

Plaintiffs' cause of action is for personal injury allegedly caused by the defendant's negligence. Plaintiffs have not asserted any claims against defendant's insurer and their cause of action has no direct effect on the insurer's assets. The court finds that the granting of a stay would cause an unjust and unwarranted impingement on plaintiffs' right to prosecute their claim. Defendant's motion for a stay is therefore denied.

The foregoing constitutes the decision and order of the court.

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J.S.C.