
    George B. McPhillips, Respondent, v St. Paul Fire & Marine Insurance Company, Appellant.
    [611 NYS2d 64]
   Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: In this declaratory judgment action, Supreme Court granted judgment declaring that the professional liability policy issued by defendant to plaintiff covers the legal malpractice action commenced against plaintiff by Eileen and Donald Feinman, and further declaring that defendant is obligated to indemnify plaintiff and to pay any damages that may be awarded against plaintiff in that action. Supreme Court concluded that "there is no reasonable way that [plaintiff] could 'foresee that a malpractice claim might be brought’ against him based on the fact that a lawsuit was commenced against his clients on a debt that was previously compromised with court approval in a proceeding in the U.S. Bankruptcy Court in which the attorney represented the clients”.

The insurance policy issued by defendant to plaintiff stated that claims based on a prior incident would be covered if "neither you nor the protected person involved had knowledge of the prior incident on the effective date of this agreement, nor any reasonable way to foresee that a claim might be brought” and "the claim is reported to us while this agreement is in effect”.

There is no dispute that the claim was reported while the policy was effective. It is strongly disputed, however, whether, on May 21, 1984, plaintiff knew or had a "reasonable way to foresee” that a legal malpractice action might be commenced against him. Thus, we conclude that factual issues exist. Therefore, we reverse the judgment and remit the matter to Supreme Court to resolve those factual issues and thereafter to grant judgment declaring the rights of the parties in accordance with that factual determination (see, Matter of Spitz v Coughlin, 128 AD2d 281, 284; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3001:16, C3001:17, at 444-446). (Appeal from Judgment of Supreme Court, Nassau County, DiNoto, J. — Declaratory Judgment.) Present — Denman, P. J., Pine, Lawton, Callahan and Davis, JJ.  