KMO-361 Realty Associates v. Podbielski

254 A.D.2d 43, 678 N.Y.S.2d 323, 1998 N.Y. App. Div. LEXIS 10053

Opinion

—Order (denominated judgment), Supreme Court, New York County (Ira Gammerman, J.), entered on or about July 25, 1997, which, in a declaratory judgment action involving whether defendant insurer is obligated to defend and indemnify plaintiffs’ project owner and construction manager in an underlying wrongful death action, granted plaintiffs’ motion for summary judgment only to the extent of declaring that defendant insurer is obligated to share the cost of such defense equally with plaintiff insurer, unanimously affirmed, with costs.

Although the decedent’s death is covered under defendant insurer’s policies with defendant decedent’s employer, naming plaintiffs’ project owner and construction manager as additional insureds (see, O'Connor v Serge El. Co., 58 NY2d 655, mot to amend remittitur granted 58 NY2d 799), defendant insurer’s duty to indemnify, under these policies, is not coextensive with its duty to defend and is not triggered until there has been a determination of liability on the part of its insureds (see, Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 178). Obviously, defendant insurer’s refusal to indemnify plaintiffs’ project owner and construction manager is no basis for declaring, at this juncture, that the decedent’s employer breached its agreement with the construction manager to procure liability insurance (cf., Garcia v Great Atl. & Pac. Tea Co., 231 AD2d 401). Concur — Sullivan, J. P., Milonas, Nardelli and Tom, JJ.