Opinion
125316.
Decided February 8, 2007.
Kevin A. Lane, Esq., Law Offices of Sliwa Lane, Attorneys for Plaintiff, Buffalo, New York.
Marlene Monteleone, Esq., Bivona Cohen, LLP, Attorneys for Defendant, New York, New York.
Plaintiff, Thomas Johnson, Inc., brings this Motion to Reargue its prior cross-motion which sought summary judgment declaring that it is entitled to a defense and indemnification with regard to all claims in a third-party action, or in the alternative, that it is entitled to counsel of its own choosing to be paid for by Defendant, or in the alternative, leave to amend the Complaint ( see, Plaintiff's Notice of Motion, Exhibit B). This Court granted Plaintiff's cross-motion requesting leave to amend the Complaint but denied the remaining relief requested without prejudice on December 7, 2006, based upon the Defendant's claim that no discovery had commenced.
Generally, a Motion to Reargue must be based upon matters of facts or law allegedly overlooked or misapprehended by the Court in determining the prior motion ( see, CPLR 2221 [d]). However, it is not designed to offer a party an opportunity to argue new theories or present new facts not previously advanced by it ( Spatola v Tarcher, 293 AD2d 523 [2nd Dept 2002]; Phillips v Oriskany, 57 AD2d 110 [4th Dept 1977]). The Plaintiff asserts that the issues in dispute are legal rather than factual and therefore, ripe for adjudication by the Court. Further, the Plaintiff contends that the Court overlooked the failure of the Defendant to specifically address what information was needed and how it would be relevant in resolving the issues created by the Defendant's reservation of rights letter dated November 22, 2005. In support of its position, the Plaintiff points to the fact that Defendant has yet to request any discovery items since the Court rendered its decision. As a result, the Plaintiff submits that the Defendant's ongoing claim that further discovery is necessary lacks validity. The Court agrees.
It is well settled that the duty to defend is greater than the duty to indemnify and that the duty to defend arises when the allegations in the complaint may reasonably be construed to encompass the risk undertaken by the insurer ( Goldberg v Lumber Mut. Casualty Ins. Co., 297 NY 148; Salimbene v Merchants Mut. Ins. Co., 217 AD2d 991 [4th Dept 1995]; U. S. Fidelity and Guaranty Co. v Copfer, 63 AD2d 847 [4th Dept 1978]). Further, the policy must be construed liberally in favor of the insured and strictly against the insurer ( Propis v Fireman's Fund Ins. Co., 112 AD2d 734 [4th Dept 1985]; Touchette Corp. v Merchants Mut. Ins. Co., 76 AD2d 7 [4th Dept 1980]). The law is clear that the duty to defend is not contingent upon the insurer's ultimate duty to indemnify and extends to any action alleging a claim which is potentially covered, regardless of whether excluded claims are also alleged ( Seaboard Surety Co. v Gillette Co, 64 NY2d 304; Progressive Ins. Co. v Zurich Ins., 288 AD2d 879 [4th Dept 2001]).
In the instant case, the Defendant acknowledged that it had a duty to defend the Plaintiff by letter dated November 22, 2005, but it also indicated that it would only cover the Plaintiff for certain causes of action asserted against them. Significantly, this could result in a potential conflict of interest between the Plaintiff and Defendant ( see, Public Service Mut. Ins. Co. v Goldfarb, 53 NY2d 392; City of New York v Clarendon Nat'l Ins. Co., 309 AD2d 779 [2nd Dept 2003]). Where there is a potential conflict of interest between an insured and insurance provider, the insured should be permitted to select its own attorney with the reasonable value of such services, both past and future, to be paid by the insurance provider ( Prashker v United States Guarantee Co., 1 NY2d 584; Pistolesi v North Country Ins. Co., 210 AD2d 961 [4th Dept 1994]).
Accordingly, the Plaintiff's Motion to Reargue is granted. Further, the Court grants the Plaintiff's cross-motion for summary judgment, in part, declaring that it is entitled to counsel of its own choosing with the reasonable costs of such services to be paid by Defendant. This Court does not, however, make any determination as to the Defendant's ultimate responsibility, if any, for indemnifying the Plaintiff ( see generally, Spoor-Lasher Co. v Aetna Casualty Surety Co., 39 NY2d 875; Amica Mut. Ins. Co. v Grose, 166 AD2d 877 [4th Dept 1990]).
This Decision shall constitute the Order of the Court.