General
Approved Pharmaceutical Corp., Formerly Known as Beijer Drug, Inc., Plaintiff, v. David S. Putter, Defendant, and Norton S. Putter et al., Defendants and Third-Party Plaintiffs-Respondents. Liberty Mutual Insurance Company et al., Third-Party Defendants-Appellants
127 A.D.2d 978·New York Supreme Court, Appellate Division·1987·NY
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Opinion
Approved Pharmaceutical Corp., Formerly Known as Beijer Drug, Inc., Plaintiff, v David S. Putter, Defendant, and Norton S. Putter et al., Defendants and Third-Party Plaintiffs-Respondents. Liberty Mutual Insurance Company et al., Third-Party Defendants-Appellants.
[MAJORITY]
Order unanimously modified on the law by deleting the second decretal paragraph, and as modified affirmed without costs. Memorandum: Special Term correctly denied defendant insurance companies’ motions to dismiss. We do not, however, agree with Special Term that an order compelling the insurance companies to defend the action brought against Approved Pharmaceutical for indemnity should have been granted. Before applying the principles set forth in O’Dowd v American Sur. Co. (3 NY2d 347), there must first be a determination that liability coverage exists. No such determination has been made. (Appeal from order of Supreme Court, Onondaga County, Balio, J. — summary judgment-declaratory judgment.) Present —Callahan, J. P., Denman, Green, Pine and Lawton, JJ.