Opinion
April 14, 1986
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Order reversed, on the law, without costs or disbursements, and, upon searching the record (see, CPLR 3212 [b]), action dismissed as premature.
An insurer's duty to defend is measured against the allegations of the complaint against its insured and arises whenever the allegations fall within the risk covered by the policy (see, e.g., Colon v. Aetna Life Cas. Ins. Co., 66 N.Y.2d 6; Ruder Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 669-670). The instant action was, therefore, premature because no personal injury action had been commenced to recover damages against the defendants Arnold and Evan Fishman prior to commencement of this declaratory judgment action. Thus, no complaint existed from which the duty of Hertz to defend could be determined.
We note that this court was advised of an action allegedly commenced on or about December 30, 1985 in the United States District Court for the Eastern District of Pennsylvania against, inter alia, the defendant Arnold Fishman. However, evidence of that action is dehors the record on appeal and may not be considered by us in determination of these appeals. Mangano, J.P., Thompson, Brown and Weinstein, JJ., concur.