General Accident Insurance v. Packer

224 A.D.2d 975, 637 N.Y.S.2d 559, 1996 N.Y. App. Div. LEXIS 1623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1996
• Status: Published

Opinion

—Judgment unanimously reversed on the law without costs, motion granted and judgment granted in accordance with the following Memorandum: Plaintiff commenced this action seeking a declaration that it is not obligated to defend or indemnify its insured. While standing in a union picket line, the insured allegedly threw a rock that struck and injured a truck driver attempting to exit the employer’s plant. Supreme Court erred in denying plaintiff’s motion for summary judgment. Such conduct is an intentional act and not an "occurrence” within the meaning of the insured’s homeowners policy (see, Salimbene v Merchants Mut. Ins. Co., 217 AD2d 991). Thus, we reverse the judgment on appeal and grant judgment declaring that plaintiff is not obligated to defend or indemnify its insured. We do not reach the issue whether the injury arose out of a business pursuit of the insured. (Appeal from Judgment of Supreme Court, Erie County, Gorski, J. — Declaratory Judgment.) Present — Denman, P. J., Lawton, Doerr, Balio and Boehm, JJ.