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NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., RESPONDENT, v. HARTFORD INSURANCE COMPANY OF THE MIDWEST, APPELLANT.

93 N.Y.2d 983 (1999).
July 6, 1999

1 No. 119

[99 NY Int. 0115]
Decided July 6, 1999


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Nicholas P. Calabria, for appellant.
Eric A. Portuguese, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary, since the Appellate Division order reversing the judgment of the trial court was final.

The dispositive issue in Chaos Construction Corporation's prior lawsuit against only National Union Fire Insurance Company was whether National was obligated to defend and indemnify Chaos in the underlying wrongful death action. That is not the same issue as here, where National seeks a declaration that Hartford Insurance Company owes it a duty of contribution as a coinsurer of Chaos. Because "identicality of an issue" is lacking here ( Matter of Halyalkar v Board of Regents of the State of N.Y., 72 NY2d 261, 266), Hartford has failed to establish its entitlement to collateral estoppel against National. Under the circumstances of this case, Supreme Court's resolution of the earlier action does not preclude National from now seeking resolution of its contribution claim.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs, and certified question not answered as unnecessary, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Decided July 6, 1999