Opinion
February 10, 1998
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
An insurer's duty to defend is broader than the duty to indemnify and arises where the allegations of the complaint against the insured fall within the scope of the risks undertaken by the insurer (North Riv. Ins. Co. v. ECA Warehouse Corp., 172 A.D.2d 225). Here, since the complaint in the underlying personal injury action contains allegations against both the general contractor and the subcontractor, and the subject policy clearly names the general contractor as an additional insured and provides coverage that is primary, the insurer has a duty to defend as a matter of law, and we so declare. However, a declaration that the insurer has a duty to indemnify the general contractor requires a determination that the underlying accident arose out of the subcontractor's performance of work under its contract with the general contractor, which must await a determination of liability in the underlying personal injury action (see, supra; Recant v. Harwood, 222 A.D.2d 372, 373).
Concur — Rosenberger, J. P., Ellerin, Nardelli and Rubin, JJ.