Opinion
October 13, 1998
Appeal from the Supreme Court, Richmond County (Cusick, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
It is well settled that an insurer's duty to defend is broader than the duty to indemnify ( see, Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304; Ruder Finn v. Seaboard Sur. Co., 52 N.Y.2d 663). An insurer has a duty to defend its insured where the allegations of the complaint in the underlying action or the known facts give rise to a reasonable possibility of coverage ( see, Frontier Insulation Contrs. v. Merchants Mut. Ins. Co., 91 N.Y.2d 169; Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61). However, the insurer's duty to indemnify requires a determination that the insured is liable for a loss covered by the policy ( see, Servidone Constr. Corp. v. Security Ins. Co., 64 N.Y.2d 419; General Acc. Ins. Co. v. IDBAR Realty Corp., 229 A.D.2d 515). Here, the record does not demonstrate as a matter of law that the plaintiff in the underlying action was injured as a result of an occurrence covered by the policy issued by the defendant Zurich Insurance Company (hereinafter Zurich). Consequently, the Supreme Court properly denied that branch of the plaintiffs' motion which was to declare that Zurich is obligated to indemnify them ( see, General Acc. Ins. Co. v. IDBAR Realty Corp., supra).
The court also properly denied that branch of the motion which was to declare that Zurich is obligated to reimburse the plaintiffs for attorneys' fees incurred in the underlying action inasmuch as the plaintiffs have refused to provide copies of bills evidencing their expenditures in defense of the underlying action.
Sullivan, J. P., Altman, Friedmann and McGinity, JJ., concur.