University Gdn. Apt.
v.
Nationwide Mut

Appellate Division of the Supreme Court of New York, Fourth DepartmentJun 8, 2001
726 N.Y.S.2d 901 (N.Y. App. Div. 2001)
726 N.Y.S.2d 901284 A.D.2d 975

June 8, 2001.

(Appeal from Order of Supreme Court, Niagara County, Fricano, J. — Summary Judgment.)

PRESENT: GREEN, J.P., HAYES, HURLBUTT, SCUDDER AND LAWTON, JJ.


Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:

Plaintiffs commenced this action seeking judgment declaring that defendant Nationwide Insurance Company (Nationwide) is obligated to defend and indemnify Dickerson Construction, Inc. (Dickerson) in a personal injury action brought against plaintiffs and Dickerson by defendant Carey A. Michalak. Based upon an order in the underlying action granting them summary judgment on their indemnification claim against Dickerson, which was affirmed by this Court ( Michalak v. University Garden Apts., 277 A.D.2d 1064), plaintiffs now seek judgment declaring that Nationwide is obligated to indemnify them in the underlying action and to reimburse them for attorney's fees and expenses incurred in defense of the underlying action.

Supreme Court properly granted the cross motion of Nationwide for summary judgment dismissing the amended complaint against it. Plaintiffs are strangers to the insurance policy issued to Dickerson, and they may not maintain a direct action against Nationwide to enforce Nationwide's obligation under that policy unless a judgment against Dickerson is rendered and remains unsatisfied ( see, Insurance Law § 3420 [a] [2]; [b] [2]; Abdalla v. Yehia, 246 A.D.2d 373, 374; Hershberger v. Schwartz, 198 A.D.2d 859, 860). We modify the order, however, by deleting the third ordering paragraph.