Greyston Foundation, Inc. v. Nationwide Insurance , 733 N.Y.S.2d 895 ( 2001 )

—In an action, inter alia, for a judgment declaring that the defendant Nationwide Insurance Co. is obligated to defend and indemnify the plaintiffs in an underlying action entitled Smith v Greyston Found., pending in the Supreme Court, Westchester County, under Index No. 919/98, the defendant Nationwide Insurance Co. appeals from an order of the Supreme Court, Westchester County (Scarpino, J.), entered June 27, 2000, which granted the plaintiffs motion for summary judgment.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for entry of a judgment declaring that the defendant Nationwide Insurance Co., is obligated to defend and indemnify the plaintiffs in the underlying action.

The letter from Nationwide Insurance Co. (hereinafter Nationwide) to Travelers Insurance Co. dated September 29, 1999, reflected an understanding between the parties that the plaintiffs reserved the right to pursue this action against Nationwide for defense and indemnity (see, Legum v Ruthen, 211 AD2d 701). In addition, there is no evidence of an “express, unconditional stipulation of discontinuance” of the action or the entry of judgment (Teitelbaum Holdings v Gold, 48 NY2d 51, 56). Thus the trial court retained supervisory control over the case and had the authority to grant summary judgment to the plaintiffs (see, Teitelbaum Holdings v Gold, supra). O’Brien, J. P., Luciano, Schmidt and Adams, JJ., concur.