DAVID CHRISTA CONSTRUCTION INC v. Daniel Roosa, Sara Roosa, Spring Lake Excavating, Inc., Defendants-Respondents, et al., Defendant. (2007)

Plaintiff commenced this action seeking, inter alia, judgment declaring that it is covered under the policies issued by defendant insurers to defendant Spring Lake Excavating, Inc., plaintiff's subcontractor, and that defendant insurers are obligated to defend and indemnify plaintiff in the underlying consolidated action.   American Home Assurance Company (defendant) appeals from an order denying its motion for summary judgment seeking a declaration that its insurance policy is excess to two policies carried by plaintiff and that defendant “does not owe plaintiff a defense or indemnification (other than possible excess indemnification) for the claims” in the underlying action.

Supreme Court properly denied defendant's motion insofar as it sought a declaration concerning the priority of coverage among the applicable insurance policies.   Even assuming, arguendo, that defendant is correct that the memorandum of law submitted by plaintiff in opposition to the motion was insufficient to raise an issue of fact (see generally CPLR 2214[b] ), we nevertheless conclude that defendant is not entitled to declaratory relief, based on its failure to join a necessary party.   According to defendant, its obligation to provide insurance coverage to plaintiff is excess to the primary obligation of United Pacific Insurance Company (United Pacific) and, because United Pacific is not a party to this action, it would not be bound by any declaration (see City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475, 423 N.Y.S.2d 651, 399 N.E.2d 538;  Wrobel v. La Ware, 229 A.D.2d 861, 862, 646 N.Y.S.2d 391).   Thus, until United Pacific “is joined as a party and afforded an opportunity to be heard, the declaratory judgment sought herein cannot serve any legitimate purpose” (Wrobel, 229 A.D.2d at 862, 646 N.Y.S.2d 391;  see Cadman Mem. Cong. Socy. of Brooklyn v. Kenyon, 279 App.Div. 1015, 1016, 111 N.Y.S.2d 808, affd. 306 N.Y. 151, 116 N.E.2d 481, rearg. denied 306 N.Y. 851, 118 N.E.2d 909;  Matter of J-T Assoc. v. Hudson Riv.-Black Riv. Regulating Dist., 175 A.D.2d 438, 440-441, 572 N.Y.S.2d 122, lv. denied 79 N.Y.2d 753, 580 N.Y.S.2d 199, 588 N.E.2d 97;  see also CPLR 1001[a] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: