
    New York Central Mutual Fire Insurance Company, Respondent, v William F. Smith, Defendant, and Tracey Boyette et al., Appellants.
    [791 NYS2d 788]—
   Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered March 19, 2004. The order denied the motion of defendants Tracey Boyette and Kameron Wilson and the cross motion of defendant William F. Smith seeking dismissal of the complaint pursuant to CPLR 3211 in a declaratory judgment action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion and cross motion are granted and the complaint is dismissed.

Memorandum: Defendant Tracey Boyette and her son, defendant Kameron Wilson, resided in premises owned by defendant William F. Smith and insured under a homeowner’s policy issued by plaintiff. Wilson was receiving, treatment for lead poisoning when his family moved into the Smith premises, and a health department investigation thereafter identified a number of lead-based paint conditions that were abated when he resided there. Plaintiff commenced this action seeking a declaration that it has no duty to defend or indemnify Smith with respect to any losses arising from claims made by Boyette and Wilson against him. Boyette and Wilson appeal from an order denying their motion seeking dismissal of the complaint against them. “Because no personal injury action has been commenced to recover damages against [Smith], the declaratory judgment action is premature” (Terry v Farmer’s Ins. Co. of Ariz., 236 AD2d 829, 829 [1997]; see Allstate Ins. Co. v Hertz Corp., 119 AD2d 612, 613 [1986]; Soto v Motor Veh. Acc. Indem. Corp., 23 AD2d 728 [1965]). Thus Supreme Court erred in denying the motion. The court also erred in denying the cross motion of Smith seeking dismissal of the complaint against him, and we grant the cross motion notwithstanding Smith’s failure to appeal from the order (see Hecht v City of New York, 60 NY2d 57, 62 [1983]). Present—Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.  