Mount Vernon Fire Insurance v. NIBA Construction Inc.

Order and judgment (one paper) of the Supreme Court, Bronx County (Barry Sal-man, J.), entered on or about June 9, 1992, which granted plaintiffs motion for a default judgment against defendants NIBA, Archibald and Cooper, held that plaintiff is not obligated to defend defendants NIBA, Archibald and Cooper in an action pending against them by defendants Davis and Davis, and held that plaintiff is not obligated to indemnify defendants NIBA, Archibald and Cooper in respect of property damage allegedly suffered by defendants Davis and Davis on or about September 29, 1987, modified, on the law, to the extent of deleting the last decretal paragraph of said judgment declaring that plaintiff is not obligated to indemnify the Davises and, except as so modified, affirmed, without costs.

Mr. and Mrs. Davis allege that, on or about September 29, 1987, their home suffered extensive fire damage during the course of renovation work. They commenced a separate action against the contractor, its owner and the architect employed by the company (collectively, "the contractor”).

In the instant action, the insurer for the contractor, plaintiff Mount Vernon Fire Insurance Company, seeks a declaration of its obligations with respect to the defense and indemnification of its insured. Plaintiff moved for a default judgment with respect to the contractor, and the Davises cross-moved for a declaration that plaintiff is obligated to defend its insured and to indemnify them for any judgment ultimately awarded in their action against the contractor.

The relief sought by the Davises in this action is premature. On the record before us, the Davises have failed to satisfy a condition precedent to maintenance of a direct action against the contractor’s insurer pursuant to Insurance Law § 3420 (a) (2) in that no judgment has yet been obtained against the contractor which has gone unsatisfied by plaintiff for 30 days (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166). Moreover, as this Court held in Clarendon Place Corp. v Landmark Ins. Co. (182 AD2d 6, appeal dismissed and lv denied 80 NY2d 918), the injured parties are neither proper parties defendant nor parties subject to permissive joinder where there has been no judgment against the insured in the underlying tort action. Until such time, the injured parties are mere "strangers to the insurance contracts at issue” (supra, at 8). However, if the Davises fulfill the requisite condition precedent in the future, they may then maintain the action, at which time the question of the insurer’s liability for the loss, including any issue with regard to timeliness of notice, can be appropriately litigated. Concur—Milonas, Asch and Rubin, JJ.