CGU Insurance v. Guadagno

Appellate Division of the Supreme Court of New York

CGU Insurance v. Guadagno

280 A.D.2d 509, 720 N.Y.S.2d 201, 2001 N.Y. App. Div. LEXIS 1505

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

DecidedFebruary 13, 2001

StatusPublished

Cited by1 cases

This text of 280 A.D.2d 509 (CGU Insurance v. Guadagno) 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

CGU Insurance v. Guadagno, 280 A.D.2d 509, 720 N.Y.S.2d 201, 2001 N.Y. App. Div. LEXIS 1505 (N.Y. Ct. App. 2001).

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Opinion

—In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify its insured, the defendant Thomas J. Guadagno, Jr., in an action entitled Teger v Guadagno, pending in the Supreme Court, Suffolk County, under Index No. 13626-96, the defendant Brett Teger appeals from (1) an order of the Supreme Court, Suffolk County (Cannavo, J.), dated December 6, 1999, which granted the plaintiffs motion for summary judgment on the complaint, and (2) a judgment of the same court, entered January 27, 2000, which declared that the plaintiff is not obligated to defend or indemnify Thomas J. Guadagno, Jr., in the underlying action. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

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

[510]*510Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

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). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The court correctly granted the plaintiffs motion. The intentional actions of the defendant Guadagno were clearly outside the scope of the insurance policy, which defined a coverable “occurrence” as an “accident” (see, Green Chimneys School for Little Folk v National Union Fire Ins. Co., 244 AD2d 387; Utica Fire Ins. Co. v Shelton, 226 AD2d 705, 706). Since no coverage was created in the first instance, the timely disclaimer provisions of the Insurance Law were inapplicable, and the plaintiff, which issued a reservation of its right to withdraw, was not estopped from asserting the lack of coverage (see, Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; Utica Fire Ins. Co. v Shelton, supra). Krausman, J. P., Mc-Ginity, Feuerstein and Smith, JJ., concur.

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—In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify its insured, the defendant Thomas J. Guadagno, Jr., in an action entitled Teger v Guadagno, pending in the Supreme Court, Suffolk County, under Index No. 13626-96, the defendant Brett Teger appeals from (1) an order of the Supreme Court, Suffolk County (Cannavo, J.), dated December 6, 1999, which granted the plaintiffs motion for summary judgment on the complaint, and (2) a judgment of the same court, entered January 27, 2000, which declared that the plaintiff is not obligated to defend or indemnify Thomas J. Guadagno, Jr., in the underlying action. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

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

[510]*510Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

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). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

The court correctly granted the plaintiffs motion. The intentional actions of the defendant Guadagno were clearly outside the scope of the insurance policy, which defined a coverable “occurrence” as an “accident” (see, Green Chimneys School for Little Folk v National Union Fire Ins. Co., 244 AD2d 387; Utica Fire Ins. Co. v Shelton, 226 AD2d 705, 706). Since no coverage was created in the first instance, the timely disclaimer provisions of the Insurance Law were inapplicable, and the plaintiff, which issued a reservation of its right to withdraw, was not estopped from asserting the lack of coverage (see, Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; Utica Fire Ins. Co. v Shelton, supra). Krausman, J. P., Mc-Ginity, Feuerstein and Smith, JJ., concur.

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280 A.D.2d 509, 720 N.Y.S.2d 201, 2001 N.Y. App. Div. LEXIS 1505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cgu-insurance-v-guadagno-nyappdiv-2001.

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