Opinion
April 9, 1991
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
At issue in this action for a declaratory judgment is plaintiff insurer's duty pursuant to a warehouseman's liability insurance policy to defend defendant insured in a Nassau County action for breach of a contract of bailment and conversion. It is well established that an insurer's duty to defend arises where the allegations of the complaint against the insured fall within the scope of the risks undertaken by the insurer. (International Paper Co. v. Continental Cas. Co., 35 N.Y.2d 322, 325.) Only if the complaint, on its face, excludes every possible basis on which an insurer might be held to be obligated to indemnify the insured can the insurer be relieved of the obligation to defend. (Servidone Constr. Corp. v. Security Ins. Co., 64 N.Y.2d 419, 423-424.) As there is no question that the claims pleaded in the complaint in the underlying action herein are, on their face, covered under the policy at issue, plaintiff's duty to defend arose, as a matter of law. It is irrelevant on the issue of the obligation to defend that questions of fact may exist as to whether the loss will ultimately be found to fall within a clause of the policy excluding certain types of loss, such as "mysterious disappearances," from coverage.
In light of the foregoing, and notwithstanding its failure to cross-move for such relief (CPLR 3212 [b]), summary judgment should be granted to defendant by way of a declaratory judgment in its favor (see, Arrow Louver Damper Corp. v. Newsday, Inc., 86 A.D.2d 513) declaring plaintiff's duty to defend it in the underlying action.
Since resolution of the second issue upon which plaintiff seeks declaratory relief, i.e., whether it is required to indemnify defendant, depends upon resolution of the underlying action, that portion of the complaint which seeks such relief must be dismissed as premature. (Prashker v. United States Guar. Co., 1 N.Y.2d 584.)
Concur — Carro, J.P., Ellerin, Kupferman, Smith and Rubin, JJ.