Isadore Rosen & Sons, Inc. v. Security Mutual Insurance , 37 A.D.2d 829 ( 1971 )

Order, Supreme Court, Bronx County, entered on December 8, 1970, unanimously reversed, on the law, the motion granted, and the complaint dismissed. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The plaintiff, a mason subcontractor, although an insured under the liability policy, does not have a cause of action as alleged against the defendant liability insurer. The damage to the built-up roofing surface on the subject building allegedly caused by plaintiff’s acts was the subject of negotiations in the matter of the final payment from the general contractor under the subcontract. It was agreed that a certain sum be allowed as an offset against such final payment in exchange for a general release of the claims of the general contractor against the subcontractor. The liability insurer did not participate in the negotiations and did not consent to the allowance; nor was the liability for or the amount of the same established by judgment or in any action. Consequently, applicable and effective to preclude the maintenance of this action is the provision of the policy that: “ The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.” (See Mormile & Co. v. Security Mut. Ins. Co., N. Y. L. J., Sept. 9, 1970, p. 19, col. 4.) Concur—Capozzoli, J. P., Markewich, Nunez, Murphy and Eager, JJ.