New York Telephone Co. v. Argonaut Insurance — 190 A.D.2d 1063

Majority

p. 1063

New York Telephone Company, Appellant, v Argonaut Insurance Company, Respondent.

— Order unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Argonaut Insurance Company (Argonaut) owes New York Telephone (N.Y. Telephone), as an additional insured under a policy of insurance, a duty to defend it in the underlying personal injury action because the allegations in the underlying personal injury complaint rationally fall within the scope of the liability policy coverage. Although it may be premature to determine whether Argonaut has any

p. 1064

obligation to indemnify N.Y. Telephone, it is obligated to defend it (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 , 310; Schwamb v Fireman’s Ins. Co., 41 NY2d 947 , 949). Thus, the order is modified to declare that Argonaut is obligated to defend N.Y. Telephone in the underlying Staggs personal injury action and that the issue of Argonaut’s duty to indemnify N.Y. Telephone is to be resolved following trial of the underlying action. (Appeal from Order of Supreme Court, Oneida County, Parker, J. — Summary Judgment.) Present— Callahan, J. P., Pine, Lawton, Boehm and Fallon, JJ.

Cases cited

Seaboard Surety Co. v. Gillette Co. 64 NY2d 304 N.Y. 1984-12-27 at 310 p. 1064