Opinion
June 17, 1996
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof which granted that branch of the defendant's cross motion which was for summary judgment dismissing the first cause of action in the complaint as time-barred, and by substituting therefor a provision denying that branch of the defendant's cross motion, and (2) by deleting the provision thereof which denied, as academic, the plaintiffs' motion to dismiss stated affirmative defenses in the answer; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs, and the matter is remitted to the Supreme Court, Nassau County, for a determination with respect to the plaintiffs' motion to dismiss stated affirmative defenses in the answer.
A cause of action based on an insurer's alleged breach of a contractual duty to defend accrues only when the underlying litigation brought against the insured has been finally terminated and the insurer can no longer defend the insured even if it chooses to do so (see, Colpan Realty Corp. v. Great Am. Ins. Co., 83 Misc.2d 730, 732; Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 29; see also, Ginn v. State Farm Mut. Auto. Ins. Co., 417 F.2d 119; Boyd Bros. Transp. Co. v. Fireman's Fund Ins. Co., 540 F. Supp. 579, affd 729 F.2d 1407 [11th Cir]; Moffat v Metropolitan Cas. Ins. Co., 238 F. Supp. 165; Kielb v. Couch, 374 A.2d 79; Employers' Fire Ins. Co. v. Continental Ins. Co., 326 So 2d 177; Continental Cas. Co. v. Florida Power Light Co., 222 So.2d 58; Gilbert v. American Cas. Co., 219 So.2d 84, cert denied 225 So.2d 920; 2 Dunham, New York Insurance Law § 30.04 [4], at 30-75).
The record indicates that the underlying action against the insureds, i.e., the plaintiffs herein, was finally terminated on December 21, 1994. Since the plaintiffs' cause of action against the defendant insurer for breach of contract was commenced within six years of that date, it was timely, and the Supreme Court erred in dismissing that cause of action (see, CPLR 213).
In view of our determination reinstating the first cause of action in the complaint, the matter is remitted to the Supreme Court for a determination with respect to the plaintiffs' motion to dismiss stated affirmative defenses in the answer.
We find no merit to the plaintiffs' remaining contention. Mangano, P.J., Sullivan, Altman and Hart, JJ., concur.