Booth Memorial Hospital & Medical Center v. Merson & Co.

162 A.D.2d 100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1990
• Status: Published

Opinion

Order of the Supreme Court, New York County (Elliott Wilk, J.), entered March 16, 1988, which, inter alia, denied defendants’ motion to dismiss the declaratory judgment action on the ground that it was premature, unanimously affirmed, on the law, with costs.

Plaintiff hospital’s professional malpractice action against defendants properly states a cause of action. Plaintiff’s allegation that it sustained damages in the form of $322,140 in premiums paid as a result of defendants’ procurement of worthless excess insurance is sufficient as a matter of law (see generally, 20 Appleman, Insurance Law & Practice § 11276 [1980]).

Moreover, plaintiff’s cause of action seeking declaratory judgment relief presents a justiciable controversy. Declaratory judgment is available under the circumstances presented because plaintiff has demonstrated that potential liability may extend into the coverage contracted for (see, e.g., Cabrini Med. Center v KM Ins. Brokers, 142 AD2d 529, appeal dismissed 73 NY2d 785; State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, affd 65 NY2d 369). Concur—Murphy, P. J., Milonas, Ellerin, Wallach and Rubin, JJ.