The majority are of the opinion that Seider v Roth (17 NY2d 111) remains the law of this State despite the recent decision of the Supreme Court in Shaffer v Heitner (433 US 186). It is apparently conceded that defendant has had no contact with New York such as would subject him to the jurisdiction of our State courts, apart from his contractual relationship with Hartford. However, the majority find that the defendant has the minimum contacts required by Shaffer v Heitner (supra) and International Shoe Co. v Washington (326 US 310) by treating the action as a direct action against the liability insurance company to the extent, at least, of attributing the New York contacts of the insurance company to the defendant for the purpose of secur*510ing jurisdiction. (See O'Connor v Lee-Hy Paving Corp., 437 F Supp 994.) I do not agree.
The activities of the insurer are not the subject matter of the litigation, nor is the underlying cause of action related to these activities. There is no showing that defendant " 'purposely avail[ed himself] of the privilege of conducting activities within the forum State’ ”. (Shaffer v Heitner, supra, at p 216, quoting Hanson v Denckla, 357 US 235, 253.) Indeed, when defendant, an Ontario resident, purchased insurance in Ontario, he may not even have been aware that the insurer conducted activities in New York. In my opinion the due process requirement that defendant have "certain minimum contacts [with New York] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice’ ” (International Shoe Co. v Washington, supra, at p 316, quoting Milliken v Meyer, 311 US 457, 463) has not been met here.
Moreover, as pointed out in Justice Stevens’ concurring opinion in Shaffer, "The requirement of fair notice also * * * includes fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign.” (Shaffer v Heitner, supra, at p 218.) It cannot be said that defendant’s purchase of insurance in Ontario gave him notice that he could be subject to suit in any State in which the insurer did business. And it strains reason to suggest that anyone buying insurance consents to suit in any jurisdiction in which the insurer has contacts.
Further, in my opinion, the Court of Appeals has not unequivocally accepted the proposition that a tort action against a defendant covered by a policy of liability insurance is in reality an action not against the tort-feasor—defendant, but against the insurance company (see Donawitz v Danek, 42 NY2d 138, concurring opn, Jasen, J., p 147, dissenting opn, Cooke, J., pp 152-153). As stated by Dean McLaughlin in his article "Seider v. Roth—Dead or Alive?” (NYLJ, Dec. 9, 1977, p 1, col 1):
"It is not at all clear that Seider v. Roth is regarded by the New York Court of Appeals as a judicially created direct action statute” and further
"It should not be forgotten that direct actions against insurance companies run counter to the traditional public policy of New York State.18 Indeed, a Judicial Conference— Law Revision Commission Proposal to enact a direct action *511statute in order to abrogate the Seider doctrine was vetoed in 1973.19 One may question whether it is appropriate for a court to enter this miasma in order to create a direct action whose procedural and substantive reverberations are totally unpredictable. * * *
"(18) See N.Y. Ins. Law sec. 167 (b).
"(19) The proposed statute is discussed in 16 N.Y. Judicial Conf. Rep. 264 (1971).”
Because the majority’s opinion that Seider is still viable depends upon the direct action hypothesis—a legal fiction which, in my opinion, has not been and should not be adopted, I cannot accept it. (See Torres v Towmotor Div. of Caterpillar, — F Supp — [Nov. 18, 1977]; Katz v Umansky, 92 Misc 2d 285; Kennedy v Deroker, 91 Misc 2d 648.)
I concur in the result reached, however, because although I believe Seider and Donawitz are no longer the law in this State, I do not believe that plaintiffs complaint should be dismissed. Plaintiffs action was commenced in reliance on Seider and Harris v Balk (198 US 215) prior to the Shaffer decision on June 24, 1977.1 Under these circumstances, were our court to agree that the United States Supreme Court has overruled Seider in its Shaffer decision, we could, in my opinion, hold that it has done so prospectively only,2 or make other appropriate provisions to protect plaintiffs vested rights.3
Card amone, J. P., Simons and Denman, JJ., concur with Dillon, J.; Hancock, Jr., J., concurs in result, in an opinion.
Order affirmed, with costs.
. Plaintiff’s action was commenced through an order of attachment upon the property of defendant-appellant, McGaw, granted on May 20, 1975, and levied upon Hartford on May 27, 1975. The motion to quash the attachment and dismiss the action was made on July 15, 1976, and denied on July 27, 1976.
. See opinion of Justice Clark in Linkletter v Walker (381 US 618) in which the Supreme Court declined to give retrospective effect to its prior decision in Mapp v Ohio (367 US 643; 21 Corpus Juris Secundum, Courts, § 194 [Cumulative Annual Pocket Part, 1977]; The Effect of the Interstate Agreement on Detainers Upon Federal Prisoner Transfer, 46 Fordham L Rev 492, 518-519).
. See New York State Law Digest, No. 216, December 1977, Special Insert, "Protecting Dismissed Seider Cases from the Statute of Limitations” in which various methods for avoiding the unjust impact of dismissing cases initiated in reliance on Seider are discussed, including the suggestion that the Shaffer decision "should not be allowed retroactive impact any greater than would be allowed a new statute which alters prior law.”