511 Main Street Corp. v. Fireman's Fund Insurance

— Judgment unanimously reversed, with costs, defendants’ motion denied and judgment granted in favor of plaintiffs, in accordance with the following memorandum: Because the several complaints for property and other damage contain general allegations of negligence on the part of each defendant, Special Term erred in granting summary judgment and dismissing plaintiffs’ declaratory judgment action. “It is well settled that the duty of a liability carrier to defend is broader than the duty to pay (Goldberg v Lumber Mut. Cas. Ins. Co. of N. Y., 297 NY 148) even against lawsuits, within the compass of the risk, no matter how groundless, false or baseless these suits may be (Calkins v Merchants Mut. Ins. Co., 59 AD2d 1052, 1053).” (Kincaid v Simmons, 66 AD2d 428, 431.) Defendant’s ultimate responsibility for indemnifying any one of the defendants may not be determined in advance of a trial of the action (see New York Mut. Underwriters v Cavallaro, 90 AD2d 962). (Appeal from judgment of Supreme Court, Erie County, Johnson, J. — declaratory judgment.) Present — Simons, J. P., Hancock, Jr., Callahan, Moule and Schnepp, JJ.