Trustee of the ABS Liquidating Trust, Representative and Attorney-in-Fact for Commercial, Plaintiff-Appellant, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, OHIO, (2nd Cir. 2004)

Docket Number: 03-7693

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 24th day of February, two thousand four.

Present: HONORABLE AMALYA L. KEARSE, HONORABLE ROSEMARY S. POOLER, Circuit Judges, HONORABLE STEFAN R. UNDERHILL, District Judge*.

COMMERCIAL FINANCIAL SERVICES, INC., by Lloyd T. Whitaker, Trustee of the ABS Liquidating Trust, Representative and Attorney-in-Fact for Commercial, Plaintiff-Appellant, - v. - No. 03-7693

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, OHIO CASUALTY INSURANCE COMPANY, WESTCHESTER FIRE INSURANCE COMPANY, Defendants-Appellees.

Appearing for Appellant: Walter P. Loughlin, Latham & Watkins, N.Y., N.Y.

Appearing for Appellees Great American Ins. Co. of New York and Ohio Casualty Ins. Co.: Noah Nunberg, L'Abbate, Balkan, Colavita & Contini, N.Y., N.Y.

Appearing for Appellee Westchester Fire Ins. Co.: James J. Duggan, Lustig & Brown, N.Y., N.Y.

Appeal from the United States District Court for the Southern District of New York.

This cause came on to be heard on the record from the United States District Court for the Southern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is modified to provide that the dismissal of the complaint is without prejudice and that plaintiff may file an amended complaint within 20 days after the issuance of the mandate herein or by such other date as the district court shall set; and as modified, the judgment is affirmed.

FOR THE COURT:

ROSEANN B. MacKECHNIE, Clerk by:

[*]-. Honorable Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation.