Opinion
June 15, 1999.
Appeal from the Supreme Court, New York County (Carol Huff, J.).
No issues of fact exist as to whether defendant was obligated to defend plaintiff at the outset of the underlying action, and, inasmuch as defendant's subsequent offer to defend was conditioned on a reservation of rights with respect to its obligation to indemnify, plaintiff was at all times entitled to counsel of its own choosing, and to reimbursement of the reasonable cost thereof ( see, Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 401). However, plaintiff is not entitled to recover its legal expenses in prosecuting the instant action ( see, Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21), and we modify accordingly. Defendant's motion to renew was properly denied on the ground that it was not based on new facts unknown to defendant at the time of the first motion.
Concur — Rosenberger, J.P., Tom, Rubin, Saxe and Buckley, JJ.