17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966)
The two plaintiffs, husband and wife residents of New York, were injured in an automobile accident on a highway in Vermont, allegedly through the negligence of defendant Lemieux who lives in Quebec.1 The other defendant, Roth, was the driver of a third car involved in the collision.2 The order of attachment directed the Sheriff to levy upon the contractual obligation of Hartford Accident and Indemnity Company to defend and indemnify defendant Lemieux under a policy of automobile liability issued by Hartford to Lemieux.3 Hartford is an insurer doing business in New York State and the attachment papers were served on it in New York State.4 The Hartford-Lemieux liability policy was issued in Canada, and Lemieux was personally served in Quebec.5
Defendant Lemieux moved to vacate the attachment and the service of the summons and complaint on Lemieux.6 Special Term denied the motion on the ground that he was bound by the Second Department decision in Fishman v. Sanders where a similar contractual obligation of a liability insurer was held to be attachable.7 Fishman v. Sanders came to this court but the court did not pass on the particular question.8 On defendant’s appeal in the present case, the same Appellate Division affirmed with one Justice dissenting alone.9
The majority noted that defendant-appellant was arguing for vacatur on the ground that the purported attachment was an attempt to levy upon an obligation which is limited, conditional and dependent upon several contingencies, and is neither absolutely payable at present nor in the future.10 The dissenting Justice said that the insurer’s obligation is not subject to attachment because it is not an indebtedness which is absolutely payable.11 This appeal, taken by leave of the Appellate Division, brings the question to this court.12
Whether defendant’s liability insurer’s contractual obligation to defend and indemnify defendant is a “debt” owing to defendant and as such subject to attachment under CPLR 6202?13
Yes. The established facts show that plaintiffs are New York residents injured in Vermont by Quebec resident Lemieux.16 The attachment targeted Hartford's obligation under the Canadian policy, but Hartford does business in New York.17 The obligation to defend and indemnify accrued upon the accident.18
This satisfies the requirement for an attachable debt because it will become due upon fulfillment of the policy conditions through the litigation.19 The Special Term and Appellate Division properly denied the motion to vacate.20
The defendant’s liability insurer’s contractual obligation to defend and indemnify is a debt subject to attachment under CPLR 6202.21
Related opinions on this issue
Judge Burke dissented, arguing that the attachment ought to be vacated because the so-called debt is a mere contingent promise that does not fall within the definition of an attachable debt under CPLR 5201.22 He explained that the obligation is not past due and will not become due until jurisdiction over the insured is properly obtained, creating a bootstrap situation.23 Burke distinguished the Riggle case on the ground that personal jurisdiction had been obtained before the debt accrued in that matter.24
He concluded that public policy should prevent approval of what amounts to a direct action against the foreign insurer.25