Imperial Sterling, Ltd., et al., Respondents, v. CIGNA, Appellant, et al., Defendants

Imperial Sterling, Ltd., et al., Respondents, v CIGNA, Appellant, et al., Defendants. [624 NYS2d 925] [MAJORITY] —In an action for a judgment declaring that the defendants have a duty to defend and indemnify Imperial Sterling, Ltd. in an underlying personal injury action entitled Stone v City of New York, pending in the Supreme Court, Queens County, the defendant CIGNA appeals from an order of the Supreme Court, Queens County (Friedmann, J.), dated March 31, 1993, which granted the plaintiffs’ motion for summary judgment and denied its cross motion for summary judgment on the issue of coinsurance. Ordered that the order is modified by deleting the provision thereof which denied the cross motion for summary judgment on the issue of coinsurance and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant CIGNA and the Merchants & Business Men’s Mutual Insurance Company are coinsurers and are obligated to share equally in the defense and indemnification of Imperial Sterling, Ltd. (see, Merchants & Bus. Men’s Mut. Ins. Co. v Savemart, 213 AD2d 607 [decided herewith]). Thompson, J. P., Sullivan, Copertino and Pizzuto, JJ., concur.