Opinion
November 19, 1993
Appeal from the Supreme Court, Ontario County, Henry, Jr., J.
Present — Callahan, J.P., Pine, Balio, Doerr and Boomer, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly determined that third-party defendant Nationwide Mutual Fire Insurance Co. (Nationwide) has a duty to defend its insureds in the underlying personal injury action alleging negligent entrustment of a dangerous instrumentality to an infant (see, Cone v Nationwide Mut. Fire Ins. Co., 75 N.Y.2d 747; see also, Technicon Elecs. Corp. v American Home Assur. Co., 74 N.Y.2d 66, 73-74; Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304, 310; International Paper Co. v Continental Cas. Co., 35 N.Y.2d 322, 325-326). The court erred, however, in awarding third-party plaintiffs costs and attorney's fees incurred in bringing the third-party action. An insured is not entitled to recover the costs and expenses of bringing an affirmative action to settle his rights, but may recover only when he has been cast in a defensive posture by the action of an insurer in an effort to absolve itself from its policy obligations (Mighty Midgets v Centennial Ins. Co., 47 N.Y.2d 12, 21; Johnson v General Mut. Ins. Co., 24 N.Y.2d 42, 50; AFA Protective Sys. v Atlantic Mut. Ins. Co., 157 A.D.2d 683, 686). The court also erred in denying Nationwide's motion to dismiss the cross claim of plaintiffs. Plaintiffs cannot maintain a direct claim against Nationwide. Plaintiffs are strangers to the homeowners' insurance policy and may not seek enforcement of the insurer's obligation under the policy (Clarendon Place Corp. v Landmark Ins. Co., 182 A.D.2d 6, 8-9, lv denied and appeal dismissed 80 N.Y.2d 918). Plaintiffs may commence a direct action against defendants' insurer only when a judgment has been rendered against the insureds and the judgment remains unsatisfied 30 days after entry (see, Insurance Law § 3420 [a] [2]).
Therefore, the order is modified by dismissing plaintiffs' cross claim in its entirety and denying the application of third-party plaintiffs insofar as the application sought costs and attorney's fees incurred in bringing the third-party action.