Allstate Insurance v. DePasquale

Appellate Division of the Supreme Court of New York

Allstate Insurance v. DePasquale

303 A.D.2d 432, 755 N.Y.S.2d 889

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 10, 2003

StatusPublished

This text of 303 A.D.2d 432 (Allstate Insurance v. DePasquale) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allstate Insurance v. DePasquale, 303 A.D.2d 432, 755 N.Y.S.2d 889 (N.Y. Ct. App. 2003).

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Opinion

—In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend and/or indemnify the defendant in an underlying action entitled Leño v DePasquale, pending in the Supreme Court, Nassau County, under Index No. 5050/00, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Segal, J.), dated December 24, 2001, which granted the plaintiff’s motion, inter alia, for summary judgment and denied his cross motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify him in the underlying action, and (2) a judgment of the same court, entered January 15, 2002, which, in effect, declared that the plaintiff is not obligated to defend and/or indemnify the defendant in the underlying action. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see CPLR 5501 [c]). Presiding Justice Prudenti has been [433]*433substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

The plaintiff established that the allegations contained in the underlying complaint do not constitute an occurrence under the insurance policy it issued to the defendant (see Miller v Continental Ins. Co., 40 NY2d 675 [1976]; Syvertsen v Great Am. Ins. Co., 267 AD2d 854, 856 [1999]). The plaintiff demonstrated that the policy’s intentional acts exclusion applies to the defendant’s claim (see Allstate Ins. Co. v Mugavero, 79 NY2d 153 [1992]; Syvertsen v Great Am. Ins. Co., supra).

The defendant’s remaining contentions are without merit. Prudenti, P.J., Feuerstein, McGinity and H. Miller, JJ., concur.

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—In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend and/or indemnify the defendant in an underlying action entitled Leño v DePasquale, pending in the Supreme Court, Nassau County, under Index No. 5050/00, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Segal, J.), dated December 24, 2001, which granted the plaintiff’s motion, inter alia, for summary judgment and denied his cross motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify him in the underlying action, and (2) a judgment of the same court, entered January 15, 2002, which, in effect, declared that the plaintiff is not obligated to defend and/or indemnify the defendant in the underlying action. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see CPLR 5501 [c]). Presiding Justice Prudenti has been [433]*433substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).