Opinion
March 12, 1993
Appeal from the Supreme Court, Monroe County, Calvaruso, J.
Present — Denman, P.J., Green, Balio, Doerr and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: This declaratory judgment action is premature. The extent of defendant American Home Assurance Company's (Home) duty to indemnify must necessarily depend on the resolution of an issue that, if it arises, will be decided in the underlying action (see, Hout v. Coffman, 126 A.D.2d 973; Allstate Ins. Co. v Santiago, 98 A.D.2d 608). Thus, the complaint against Home must be dismissed.
Supreme Court did not abuse its discretion in denying Home's application for an award of costs, disbursements and attorney's fees.