Opinion
2002-09275
Argued September 23, 2003.
October 14, 2003.
In an action, inter alia, for a judgment declaring that the defendant Clarendon National Insurance Company is obligated to defend and indemnify the plaintiff in an underlying wrongful death action entitled Public Administrator of Kings County v. Ruiz, pending in the Supreme Court, Kings County, under Index No. 11702/01, the defendant Clarendon National Insurance Company appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated June 27, 2002, which granted the plaintiff's motion for summary judgment and denied its cross motion for summary judgment.
Querrey Harrow, Ltd., New York, N.Y. (Thomas J. Bracken of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and Drake A. Colley of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant Clarendon National Insurance Company is obligated to defend, and if necessary, indemnify the plaintiff in the underlying action entitled Public Administrator of Kings County v. Ruiz, pending in the Supreme Court, Kings County, under Index No. 11702/01.
The defendant Clarendon National Insurance Company (hereinafter Clarendon), having acknowledged that it was obligated to defend the City of New York in the underlying action and that separate independent counsel should be appointed, wrongfully disclaimed coverage on the ground of noncooperation when the City rejected Clarendon's choice of counsel ( see Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168; Allstate Ins. Co. v. Durand, 286 A.D.2d 407, 408). It is well settled that where a conflict of interest is probable, such as here, where the insurer has conditioned its defense on a reservation of rights, the insured is entitled to an attorney of its own choosing ( see Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 401; Prashker v. United States Guar. Co., 1 N.Y.2d 584, 593; First Jeffersonian Assocs. v. Insurance Co. of N. Am., 262 A.D.2d 133, 134; 69th St. 2nd Ave. Garage Assocs. v. Ticor Tit. Guar. Co., 207 A.D.2d 225, 227; Bryan v. State-Wide Ins. Co., 144 A.D.2d 325, 327). Accordingly, the Supreme Court properly granted the City's motion for summary judgment and denied Clarendon's cross motion for summary judgment ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
Since this is an action for a declaratory judgment, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that Clarendon is obligated to defend, and if necessary, indemnify the plaintiff in the underlying action ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert. denied 371 U.S. 901).
FEUERSTEIN, J.P., FRIEDMANN, McGINITY and SCHMIDT, JJ., concur.