Opinion
May 1, 1997
Appeal from the Supreme Court, Bronx County (Anne Targum, J.)
Third-party plaintiff agrees that the anti-subrogation rule bars its third-party claim up to the amount of the insurance coverage purchased for it by third-party defendant, but argues against such a bar to the extent its exposure to plaintiff exceeds such coverage. However, any questions concerning the right to indemnification for a loss in excess of the primary coverage are premature at this stage ( see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 N.Y.2d 465, 473).
Motion denied insofar as it seeks a stay of trial and/or leave to appeal to the Court of Appeals; motion granted insofar as reargument/clarification is sought and thereupon this Court's unpublished decision and order entered on April 1, 1997 (appeal No. 60431) is recalled and vacated and a new decision and order decided simultaneously.
Concur — Milonas, J.P., Wallach, Nardelli and Tom, JJ.