William W. Crossett, III, et al., Respondents, v. Paul Sweeney et al., Appellants, et al., Defendant

William W. Crossett, III, et al., Respondents, v Paul Sweeney et al., Appellants, et al., Defendant. [MAJORITY] Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term erred in denying the motion of codefendants Paul Sweeney and Paul R. Sweeney Agency, Inc. for summary judgment dismissing plaintiffs’ complaint against them. Plaintiffs elected their remedy by seeking and securing the penalty order pursuant to CPLR 3126 against codefendant Dixon, which established that there was a policy of insurance in effect at the time plaintiffs’ property was destroyed by fire, and by thereafter obtaining a default judgment against him. Plaintiffs cannot now proceed against appellants on the theory that they breached a duty to obtain such policy (see, Simon v Boyer, 51 AD2d 879, affd 41 NY2d 822; see generally, 2 Carmody-Wait 2d, NY Prac ch 10). The order appealed from is modified to grant summary judgment to appellants and to strike the last decretal paragraph. (Appeal from order of Supreme Court, Onondaga County, Donovan, J. — summary judgment.) Present —Callahan, J. P., Doerr, Boomer, Pine and Balio, JJ.