April 24, 1990
Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).
Since plaintiff insured chose to seek resolution of the dispute in New York and waited over a year to start a similar action in Massachusetts, the IAS court properly denied plaintiff's motion to dismiss its own action (see, Colson v. Pelgram, 259 N.Y. 370). A different result is not warranted by the fact that the New York action seeks only declaratory relief while the Massachusetts action was for money damages; plaintiff could have added a damage claim to the New York action once it had been cast in damages in the Massachusetts personal injury action. Nor does Massachusetts law apply to the substantive issues of this case; New York, where the policy was procured and issued, and where the insured has its principal place of business, has more significant contacts. The policy is not ambiguous in limiting defendant insurer's indemnity obligation to losses in excess of the policy limits of the underlying policies, and the policy cannot be read as insuring against the underlying carriers' inability to pay, or as providing any coverage for amounts below the limit of the underlying coverage. Finally, the IAS court had authority to recall its first decision sua sponte prior to issuing an order thereon (Levinger v. General Motors Co., 122 A.D.2d 419, 420).
Concur — Sullivan, J.P., Ross, Ellerin, Wallach and Smith, JJ.