Statt v. American Home Assurance Co.

—Judgment unanimously modified on the law and as [963] modified affirmed without costs in accordance with the following Memorandum: This declaratory judgment action is premature. The extent of defendant American Home Assurance Company’s (Home) duty to indemnify must necessarily depend on the resolution of an issue that, if it arises, will be decided in the underlying action (see, Hout v Coffman, 126 AD2d 973; Allstate Ins. Co. v Santiago, 98 AD2d 608). Thus, the complaint against Home must be dismissed. Supreme Court did not abuse its discretion in denying Home’s application for an award of costs, disbursements and attorney’s fees. (Appeals from Judgment of Supreme Court, Monroe County, Calvaruso, J. — Declaratory Judgment.) Present — Denman, P. J., Green, Balio, Doerr and Boehm, JJ.