All Putter Co. v. Liberty Mutual Insurance

Order and judgment unanimously modified on the law by denying defendant Liberty Mutual Insurance Company’s cross motion for summary judgment and deleting the third, fourth, and fifth decretal paragraphs thereof and as modified affirmed without costs. Memorandum: Plaintiff brought a declaratory judgment action seeking a declaration that defendant insurance carriers are required to provide a defense and indemnify plaintiff in personal injury actions brought against its successor corporation. When the successor corporation turned over the pleadings on those actions in a demand that plaintiff take over the defense of said actions, it in effect "vouched-in” plaintiff, thereby placing it at risk (see, C.K.S., Inc. v Borgenicht Sportswear, 25 AD2d 218, 219). Until such time as a determination has been made whether coverage exists under one or more of such policies, it is premature for the court to determine whether plaintiff is entitled to a defense and indemnification. All motions and cross motions should, therefore, have been denied. (Appeal from order and judgment of Supreme Court, Onondaga County, Tenney, J. — declaratory judgment-summary judg 978 ment.) Present — Callahan, J. P., Denman, Green, Pine and Lawton, JJ.