Major Builders Corp. v. Commercial Union Insurance

Appellate Division of the Supreme Court of New York

Major Builders Corp. v. Commercial Union Insurance

155 A.D.2d 267, 546 N.Y.S.2d 866, 1989 N.Y. App. Div. LEXIS 13862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 9, 1989

StatusPublished

Cited by2 cases

This text of 155 A.D.2d 267 (Major Builders Corp. v. Commercial Union Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Major Builders Corp. v. Commercial Union Insurance, 155 A.D.2d 267, 546 N.Y.S.2d 866, 1989 N.Y. App. Div. LEXIS 13862 (N.Y. Ct. App. 1989).

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Opinion

— Order, Supreme Court, New York County (Burton Sherman, J.), entered on or about February 14, 1989, which, inter alla, directed the defendant to assume the defense of plaintiff insured in an underlying action and permitted the defendant to select the attorney of record for plaintiff in the underlying action, unanimously reversed to the extent appealed, on the law, facts and in the exercise of discretion, that part of the order permitting defendant to select the attorney of record for plaintiff vacated and plaintiff permitted to select its own attorney of record in the underlying action, with costs.

This is an action for a declaratory judgment in which plaintiff sought to compel defendant to assume its defense in the underlying action brought by an owner of a project in July 1986 against plaintiff here, the general contractor and severed subcontractors. The owner’s action sounded in both negligence, which was covered by insurance, and contract, which was not. Plaintiff’s insurance company, defendant Commercial, disclaimed coverage in September 1986. The disclaimer was without basis.

In view of the fact that plaintiff Major, because of defendant’s disclaimer, has had an attorney of its choosing for three years and because of potential conflicts between plaintiff and defendant on how the case should be pursued, we deem it appropriate that plaintiff choose its own counsel. (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 401 [1981].) Concur— Kupferman, J. P., Carro, Rosenberger, Ellerin and Smith, JJ.

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— Order, Supreme Court, New York County (Burton Sherman, J.), entered on or about February 14, 1989, which, inter alla, directed the defendant to assume the defense of plaintiff insured in an underlying action and permitted the defendant to select the attorney of record for plaintiff in the underlying action, unanimously reversed to the extent appealed, on the law, facts and in the exercise of discretion, that part of the order permitting defendant to select the attorney of record for plaintiff vacated and plaintiff permitted to select its own attorney of record in the underlying action, with costs.

This is an action for a declaratory judgment in which plaintiff sought to compel defendant to assume its defense in the underlying action brought by an owner of a project in July 1986 against plaintiff here, the general contractor and severed subcontractors. The owner’s action sounded in both negligence, which was covered by insurance, and contract, which was not. Plaintiff’s insurance company, defendant Commercial, disclaimed coverage in September 1986. The disclaimer was without basis.

In view of the fact that plaintiff Major, because of defendant’s disclaimer, has had an attorney of its choosing for three years and because of potential conflicts between plaintiff and defendant on how the case should be pursued, we deem it appropriate that plaintiff choose its own counsel. (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 401 [1981].) Concur— Kupferman, J. P., Carro, Rosenberger, Ellerin and Smith, JJ.

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Bluebook (online)

155 A.D.2d 267, 546 N.Y.S.2d 866, 1989 N.Y. App. Div. LEXIS 13862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/major-builders-corp-v-commercial-union-insurance-nyappdiv-1989.

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