Katz v. City of New York

203 A.D.2d 179, 610 N.Y.S.2d 521, 1994 N.Y. App. Div. LEXIS 4213

Opinion

—Order, Supreme Court, New York County (Walter Tolub, J., on the decision of Eugene Nardelli, J.), entered July 12, 1993, which, insofar as appealed from, awarded indemnification in favor of third-party plaintiff against third-party defendant, unanimously affirmed, without costs.

Third-party defendant’s challenge to third-party plaintiff’s claim for indemnification is based on the doctrine of preindemnification squarely rejected by the Court of Appeals in North Star Reins. Corp. v Continental Ins. Co. (82 NY2d 281, 291-294). Nor should third-party plaintiff’s failure to timely notify its insurer of plaintiff’s underlying claim, resulting in the loss of its own insurance coverage, defeat its separate right to indemnification. Third-party defendant’s insurer received a premium to insure against the very risk upon which plaintiff recovered judgment, and its liability therefor should not be shared with a party who is only vicariously liable, regardless of whether that party has received or is entitled to receive any insurance proceeds on account of the judgment (supra, at 293-294). We have considered third-party defendant’s other claims and find them to be without merit. Concur —Murphy, P. J., Sullivan, Carro, Wallach and Asch, JJ.