Wausau Insurance v. Aetna Casualty & Surety Co.

—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.