Opinion
April 26, 1994
Appeal from the Supreme Court, New York County (Walter Tolub, J.).
Third-party defendant's challenge to third-party plaintiff's claim for indemnification is based on the doctrine of preindemnification squarely rejected by the Court of Appeals in North Star Reins. Corp. v Continental Ins. Co. ( 82 N.Y.2d 281, 291-294). Nor should third-party plaintiff's failure to timely notify its insurer of plaintiff's underlying claim, resulting in the loss of its own insurance coverage, defeat its separate right to indemnification. Third-party defendant's insurer received a premium to insure against the very risk upon which plaintiff recovered judgment, and its liability therefor should not be shared with a party who is only vicariously liable, regardless of whether that party has received or is entitled to receive any insurance proceeds on account of the judgment (supra, at 293-294). We have considered third-party defendant's other claims and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Carro, Wallach and Asch, JJ.