DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiffs' motion which was for summary judgment declaring that the defendants are obligated to provide separate counsel for each of the plaintiffs Michael Dunagan, Mary Percesepe, Lorraine Treacy, Louis Lurraso, Patrick Hinkley, and Dennis Leary in the underlying Federal action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring, inter alia, that the defendants are obligated to provide separate counsel for each of the plaintiffs Michael Dunagan, Mary Percesepe, Lorraine Treacy, Louis Lurraso, Patrick Hinkley, and Dennis Leary in the underlying Federal action as long there remains a pending claim sounding in negligence.
The plaintiffs commenced this action seeking a judgment declaring that the defendants are obligated to defend and indemnify them in an underlying Federal action pursuant to an errors and omissions insurance policy. In the underlying Federal action, the Town of Poughkeepsie asserted, inter alia, three causes of action against the plaintiffs, who were former Town board members, for RICO violations, breach of fiduciary duty, and negligence in connection with their approval of the purchase of a building for town police and court facilities.
The subject policy clearly excluded coverage for, among other things, dishonest, fraudulent, and criminal or malicious acts of the insured, as well as acts arising out of an insured's activities in a fiduciary capacity. Although the Supreme Court correctly concluded that there was no basis to compel the defendants to defend the plaintiffs if the RICO violations and breach of fiduciary duty claims were the only claims for relief against the plaintiffs in the underlying Federal action in light of the policy exclusions ( see Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 73; Physicians' Reciprocal Insurers v. Blank, 258 A.D.2d 573; Tartaglia v. Home Ins. Co., 240 A.D.2d 396), the Supreme Court also correctly found that the defendants were required to defend the plaintiffs with respect to all claims for relief, as long as there remains a pending claim sounding in negligence, since the allegations set forth in that claim for relief fall within the scope of risks covered by the subject policy ( see Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310). Therefore, the Supreme Court correctly denied that branch of the plaintiffs' motion which was for summary judgment declaring that the defendants are obligated to defend them on causes of action to recover for RICO violations and breach of fiduciary duty, and in denying that branch of the defendants' motion which was for summary judgment declaring that they were not obligated to defend the plaintiffs on the negligence claim for relief.
Further, the Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment on their cause of action for indemnification, since there are triable issues of fact with respect to the plaintiffs' negligence in the underlying action ( see Frontier Insulation Contrs., v. Merchants Mu. Ins. Co., 91 N.Y.2d 169; Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392; Cepeda v. Varveris, 239 A.D.2d 536; General Acc. Ins. Co. of Am. v. IDBAR Realty Corp., 229 A.D.2d 515).
However, the Supreme Court erred in denying that branch of the plaintiffs' motion which was to compel the defendants to provide separate counsel for each of the plaintiffs Michael Dunagan, Mary Percesepe, Lorraine Treacy, Louis Lurraso, Patrick Hinkley, and Dennis Leary, since each made a claim for contribution, and thus, the possibility of conflict exists ( see Death v. Salem, 111 A.D.2d 778).
Accordingly, we remit the matter to the Supreme Court, Dutchess County, for the entry of a judgment declaring, inter alia, that the defendants are obligated to provide separate counsel for each of the plaintiffs Michael Dunagan, Mary Percesepe, Lorraine Treacy, Louis Lurraso, Patrick Hinkley, and Dennis Leary in the underlying action as long as there remains a pending claim sounding in negligence.
RITTER, J.P., KRAUSMAN, TOWNES and COZIER, JJ., concur.