Gerling America Insurance v. G.A. Braun, Inc. , 710 N.Y.S.2d 896 ( 2000 )

Order and judgment (one paper), Supreme Court, New York County (Edward Lehner, J.), entered October 13, 1999, which, in this action for declaratory relief, granted plaintiffs motion for summary judgment to the extent of declaring that the only claim in the underlying litigation covered by the subject policy is that of plaintiff therein as to property damage, and that the obligation of plaintiff insurer to defend in the underlying action will continue only until the property damage claim is finally adjudicated or settled, unanimously affirmed, without costs.

Defendant insured effectively concedes that the insurer is liable only for ruined garment damages, and under the circumstances here present where the insured had its own independent counsel defending the entire case, the motion court correctly held that plaintiff insurer has the right to settle that claim independently if so advised. The insured’s assertion of bad faith premised solely upon “the insurer’s settlement without [the insured’s] knowledge or consent” (see, Feliberty v Damon, 72 NY2d 112, 116), is plainly unavailing where, as here, it was the insurer’s express prerogative under the subject policy to settle without the insured’s consent (supra). Concur— Nardelli, J. P., Ellerin, Wallach, Saxe and Buckley, JJ.