Wausau Insurance v. Aetna Casualty & Surety Co.

192 A.D.2d 1080, 595 N.Y.S.2d 996

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1993
• Status: Published

Opinion

—Judgment unanimously reversed on the law without costs and judgment granted in accordance with the following Memorandum: Because we conclude that Oberdorfer Foundries, Inc. (Oberdorfer), failed to establish as a matter of law its status as Michael W. Allen’s employer (see, Allen v Oberdorfer Foundries, 192 AD2d 1077 [decided herewith]), Supreme Court’s declaration to that effect must be reversed. Because the allegations of Allen’s complaint suggest a reasonable possibility of coverage under a comprehensive general liability policy issued to Oberdorfer by defendant Aetna Casualty & Surety Company (Aetna), Aetna has a duty to provide a defense to Oberdorfer in Allen’s action against it (see, Continental Cas. Co. v Rapid-Am. Corp., 86 NY2d 640; Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65), and we so declare. Whether Aetna must ultimately indemnify Oberdorfer must await resolution of the issue of the relationship between Oberdorfer and Oswego Casting Corp. (see, Shine v Duncan Petroleum Transp., 60 NY2d 22, 28). (Appeal from Judgment of Supreme Court, Oswego County, Hurlbutt, J. — Declaratory Judgment.) Present — Callahan, J. P., Pine, Balio, Lawton and Doerr, JJ.