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 several 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 N.Y.2d 392, 401.)
Concur — Kupferman, J.P., Carro, Rosenberger, Ellerin and Smith, JJ.