FIRST JEFFERSONIAN ASSOCIATES v. INSURANCE COMPANY OF NORTH AMERICA (1999)

Order (denominated order and judgment), Supreme Court, New York County (Carol Huff, J.), entered on or about April 20, 1998, which, in an action by plaintiff insured against defendant insurer to recover the cost of providing its own defense in an underlying action, granted plaintiff's motion for summary judgment awarding it such cost, as well as the cost of prosecuting the instant action, unanimously modified, on the law, to vacate the award for the cost of prosecuting the instant action, and otherwise affirmed, without costs.   Order, same court and Justice, entered on or about October 6, 1998, which, insofar as appealable, denied defendant's motion to renew, unanimously affirmed, without costs.

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, 442 N.Y.S.2d 422, 425 N.E.2d 810).   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, 416 N.Y.S.2d 559, 389 N.E.2d 1080), 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.

MEMORANDUM DECISION.