Oprea v. New York City Housing Authority , 657 N.Y.S.2d 552 ( 1997 )

Order, Supreme Court, Bronx County (Anne Tar gum, J.), entered September 3, 1996, which, insofar as appealed from, dismissed the third-party complaint, unanimously modified, on the law, to the extent of making such dismissal without prejudice to commencement of an action by defendant and third-party plaintiff against third-party defendant in the event plaintiff’s damages exceed $500,000, and otherwise affirmed, without costs.

Third-party plaintiff agrees that the anti-subrogation rule bars its third-party claim up to the amount of the insurance coverage purchased for it by third-party defendant, but argues against such a bar to the extent its exposure to plaintiff exceeds such coverage. However, any questions concerning the right to indemnification for a loss in excess, of the primary coverage are premature at this stage (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 473).

Motion denied insofar as it seeks a stay of trial and/or leave to appeal to the Court of Appeals; motion granted insofar as reargument / clarification is sought and thereupon this Court’s unpublished decision and order entered on April 1, 1997 (appeal No. 60431) is recalled and vacated and a new decision and order decided simultaneously. Concur—Milonas, J. P., Wallach, Nardelli and Tom, JJ.