Opinion
July 6, 1987
Appeal from the Supreme Court, Queens County (Bambrick, J.).
Ordered that the orders are affirmed, with one bill of costs.
Generally, the obligation of an insurer to defend is determined by comparing the allegations in the complaint against the insured with the provisions of the insurance policy (see, Colon v. Aetna Life Cas. Ins. Co., 66 N.Y.2d 6; Aetna Cas. Sur. Co. v Liberty Mut. Ins. Co., 91 A.D.2d 317). Based upon such a comparison, we find that the plaintiff has not met its burden of establishing that all the allegations in the complaint in the underlying action fall within the exclusionary provision upon which it relies (see, Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311). We further find that at this stage, it cannot be said that, as a matter of law, there is no legal or factual basis upon which the plaintiff may eventually be held liable under its policy. Thus, a declaration as to the plaintiff's obligation to indemnify cannot be granted in advance of the trial of the underlying action (see, First State Ins. Co. v. J S United Amusement Corp., 67 N.Y.2d 1044, 1046; Spoor-Lasher Co. v. Aetna Cas. Sur. Co., 39 N.Y.2d 875, 876). However, we note that the Supreme Court, Queens County, improperly found that a determination as to the plaintiff's obligation to indemnify should be obtained by way of a special verdict in the underlying action (see, First State Ins. Co. v. J S United Amusement Corp., 67 N.Y.2d 1044, supra).
The plaintiff's further contention that certain time and cash disbursement records were improperly admitted at the hearing held to determine reasonable attorneys' fees is without merit (see, CPLR 4518 [a]; Matter of Leon RR, 48 N.Y.2d 117, 122; Sabatino v. Turf House, 76 A.D.2d 945). The facts that the clerk who compiled the records was not called to testify at the hearing and that the underlying records from which these documents were compiled were not produced go to the weight and not the admissibility of the documents (see, CPLR 4518 [a]). Thus, the Supreme Court properly admitted the records over the plaintiff's objection.
Furthermore, we find there was sufficient evidence to support the amount of attorneys' fees awarded. Brown, J.P., Eiber, Kunzeman and Sullivan, JJ., concur.