Opinion
December 22, 1986
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and it is declared that Allstate has a duty to defend, and, if necessary, indemnify the defendant Kenneth Riggio in the aforementioned action.
The plaintiff has failed to establish, as a matter of law, that there is no possible factual or legal basis upon which it might eventually be held to be obligated to defend and indemnify the defendant Riggio (see, Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304; Spoor-Lasher Co. v. Aetna Cas. Sur. Co., 39 N.Y.2d 875, 876; Hanover Ins. Co. v. Sage, 123 A.D.2d 602). The affirmation of the defendant Riggio's attorney, together with the supporting exhibits submitted therewith, sets forth a claim that the consequences of the defendant Riggio's actions were unintended. Moreover, the pleading of the plaintiff in the underlying action never averred that the injuries suffered by him were the intended consequences of the defendant Riggio's actions. Thus, Allstate is obligated to defend and, if necessary, indemnify Riggio in the underlying action brought against him (see, e.g., Miller v. Continental Ins. Co., 40 N.Y.2d 675; McGroarty v. Great Am. Ins. Co., 36 N.Y.2d 358; State Farm Fire Cas. Co. v. Shapiro, 118 A.D.2d 556).
We note that the defendant Riggio should be permitted to retain independent defense counsel, at Allstate's expense, since his interests in proving the unintentional nature of the injuries are in conflict with that of Allstate (see, Baron v. Home Ins. Co., 112 A.D.2d 391, 393). Thompson, J.P., Rubin, Lawrence and Kunzeman, JJ., concur.