
    Joseph Phalen, Jr., Appellant, v Jamestown Mutual Insurance Company, Respondent. (And a Third-Party Action.)
   In an action, inter alia, to declare that plaintiff was a designated insured under the loading and unloading provisions of the motor vehicle insurance policy issued by defendant to plaintiff’s employer, wherein defendant, as third-party plaintiff, alleged that the sole coverage was provided by the third-party defendant Utica Mutual Insurance Company, plaintiff appeals from (1) an order of the Supreme Court, Orange County, dated October 24, 1978, which granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for summary judgment, and (2) a judgment of the same court, dated November 6, 1978, which, based on said order, dismissed the complaint. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment modified, on the law, by deleting therefrom the provision dismissing the complaint and substituting therefor a provision declaring that the defendant is under no duty to defend the plaintiff or pay any judgment obtained against the plaintiff. As so modified, judgment affirmed. Defendant is awarded one bill of $50 costs and disbursements. Under the circumstances revealed by the record, it is apparent that plaintiff’s employer has suffered no loss and neither the employer nor Utica Mutual Insurance Company is in any position to bring an action against the plaintiff. Lazer, J. P., Mangano, Cohalan and O’Connor, JJ., concur.  