County of Nassau v. National Surety Corp. , 34 A.D.2d 569 ( 1970 )

In an action for a declaratory judgment, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered January 28, 1963, which dismissed plaintiff’s complaint. Judgment modified, on the law and the facts, by (1) striking therefrom the decretal provision dismissing the complaint and (2) adding thereto a provision declaring and adjudging that the defendant, National Surety Corporation, (a) is not obligated by virtue of the insurance policy it issued to the plaintiff, the County of Nassau, to defend the latter in the action brought against it by Carolynn Budnik and (b) has no duty to make reimbursement to the plaintiff, the County of Nassau, for the settlement made by the latter in the action brought against it by Carolynn Budnik. As so modified, judgment affirmed, with costs to respondent. Under the terms of the insurance policy issued by defendant to plaintiff, which policy covered operations performed by independent contractors but did not include the use of elevators, defendant had no duty to defend the action brought against plaintiff, the County of Nassau, for the wrongful death of an employee of a subcontractor, where the complaint in that action alleged that the accident was caused by the negligence of the County of Nassau and not by the negligence of the contractor or subcontractor. Since defendant had no duty to defend the action in question, it has no duty to pay any judgment entered in that action against the County of Nassau or to reimburse the county for any reasonable settlement of the action within the limits of the policy. While we agree with the determination of the learned Trial Justice, he should not have directed dismissal of the complaint, but should instead have declared the rights of the parties (see Lanza v. Wagner, 11 N Y 2d 317; Jewish Center of Mt. Vernon v. Mt. Eden Cemetery Assn., 12 N Y 2d 773). Hopkins, Acting P. J., Munder, Martuscello, Brennan and Benjamin, JJ., concur. [38 Misc 2d 578.]