Hughes, Harrison & Brown Roofing, Inc. v. Wm. F. Slack, Inc.

— In an action for a declaratory [875] judgment, plaintiffs appeal from an order of the Supreme Court, Orange County, dated November 30, 1978, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, without prejudice to the commencement of a third-party action, or to the commencement of an independent action when a justiciable issue exists. Order affirmed, with $50 costs and disbursements. Plaintiffs alleged that the defendants, insurance brokers, had assured them that they had secured adequate workers’ compensation insurance coverage, that one of their employees was injured and filed a workers’ compensation claim and commenced a personal injury action against them and that the insurance carrier denied the existence of coverage and refused to defend the action. Plaintiffs sought a judgment declaring that defendants shall be required to indemnify them for any sums of money they are required to pay in connection with the claim or action and to reimburse them for the expenses incurred with respect thereto. We agree with the determination of Special Term that no justiciable issue presently exists (see Tobra Knitting Mills v Harris, 12 AD2d 507). The proper procedure is for plaintiffs to proceed by way of impleader, or an action for indemnity when the grounds therefor exist. To hold otherwise would require that this action be held in abeyance pending resolution of the prior workers’ compensation claim and personal injury action. This runs counter to the policy of our statutes and rules providing for the expeditious and orderly processing of actions for trial (see W. T. Grant Co. v Uneeda Doll Co., 19 AD2d 361, dissenting opn of Eager, J., p 364). Hopkins, J. P., Suozzi, Gulotta and Cohalan, JJ., concur.