Allstate Insurance v. Long , 446 N.Y.S.2d 742 ( 1981 )

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly determined that the carrier has a duty to defend its insured in the pending lawsuit (see Utica Mut. Ins. Co. v Cherry, 38 NY2d 735, affg 45 AD2d 350; United States Fid. & Guar. Co. v Copfer, 63 AD2d 847, affd 48 NY2d 871) and awarded the insured attorney’s fees for defending against the carrier’s action for declaratory judgment (Johnson v General Mut. Ins. Co., 24 NY2d 42, 50; Glens Falls Ins. Co. v United States Fire Ins. Co., 41 AD2d 869, affd on mem below 34 NY2d 778; Hurney v Mattson, 59 AD2d 934). However, Special Term should have granted the insured’s request for an order permitting him to retain counsel of his own choosing at the carrier’s expense. “[Where] the insurer’s interest in defending the lawsuit is in conflict with the defendant’s interest — the insurer being liable only upon some of the grounds for recovery asserted and not upon others — defendant * * * is entitled to defense by an attorney of his own choosing, whose reasonable fee is to be paid by the insurer” (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 401; see, also, Prashker v United States Guar. Co., 1 NY2d 584, 593; Utica Mut. Ins. Co. v Cherry, 45 AD2d 350, 354-355, supra; Penn Aluminum v Aetna Cas. & Sur. Co., 61 AD2d 1119; Rimar v Continental Cas. Co., 50 AD2d 169, 173-174). Here, the complaint against the insured embodies claims sounding both in negligence and intentional tort. Under the terms of the policy, the carrier would be liable only for the insured’s negligence and thus would benefit from a finding of an intentional tort. (Appeals from order of Erie Supreme Court, Marshall, J. — partial summary judgment.) Present — Simons, J.P., Hancock, Jr., Callahan, Den-man and Schnepp, JJ.