Opinion
December 29, 1970
Order which granted a motion for summary judgment dismissing the complaint and judgment entered thereon reversed, on the law and the facts, with costs, and motion denied. The complaint seeks judgment declaring that respondent was obligated by the terms of a policy of insurance issued to appellant Mid-City Shopping Center to defend an action commenced by Nancy Wronowski for personal injuries, and that appellant Phoenix of Hartford Insurance Company, which acceded to Mid-City's request to defend the action following respondent's disclaimer, is entitled to be reimbursed the amount it paid to satisfy the judgment ultimately recovered by Wronowski. Special Term properly determined that declaratory judgment is not an appropriate remedy to define the rights and duties of an insurer post litem motam, but appropriate relief may be granted regardless of the type of relief sought (CPLR 3017), and Special Term erred in concluding that as a matter of law there was no obligation on the part of respondent to reimburse Phoenix. Contrary to Special Term's conclusion, it is arguable whether Phoenix was a volunteer, since it defended and indemnified Mid-City upon the latter's request ( McNamee v. Zimmett, 207 App. Div. 60, affd. 239 N.Y. 602) and in any event, the terms "subrogation" and "volunteer" should not be interposed as a barrier to a valid existing claim especially when it is considered that subrogation rests upon equitable principles and may be employed to prevent unjust enrichment. The ultimate issue is that of respondent's liability to Mid-City, which must be based upon an interpretation of the insurance policy and also the record of the trial in the Wronowski action. Herlihy, P.J., Reynolds, Greenblott and Sweeney, JJ., concur; Staley, Jr., J., not voting. [ 58 Misc.2d 997.]