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Decided on October 12, 2011
Supreme Court, Kings County

4509/2010
Attorney for Plaintiff David Ben Haim, Esq. Schindel, Farman, Lipsius, Gardner & Rabinovich LLP 14 Penn Plaza, Suite 500 New York, New York 10122
(212) 563-1710 Attorney for Defendant
Carl J. Schaerf, Esq.
GuideOne Specialty Mutual Insurance
140 Broadway, Suite 3100
New York, New York 10005
(212) 973-8000
Francois A. Rivera, J.
By notice of motion filed on May 13, 2011, defendant Guideone Specialty Mutual Insurance (hereinafter "Guideone") has moved under motion sequence one to dismiss the instant complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Guideone has also moved pursuant to CPLR 5015(a)(3) to vacate and set aside a judgment granted to plaintiff in another action and pursuant to CPLR 5240, to permanently enjoin plaintiff from enforcing that judgment. The judgment in question was obtained against Beth Medrash Emek Halacha (hereinafter "Emek"), Guideone's insured, in an action bearing index number 5399/2003 (hereinafter "the underlying action").
Plaintiff opposes defendant's motion.
BACKGROUND
On February 25, 2011, plaintiff commenced the instant action by filing a summons and [*2]complaint with the King's County Clerk's Office.Plaintiff is a judgment creditor and Guideone is the insurer of Emek, the judgment debtor. Plaintiffs instant complaint is a direct action against the judgment debtor's insurer, seeking to recover the amount of the unsatisfied judgment obtained in the underlying action pursuant to Insurance Law

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