Love Picin, Inc. v. Certain Interested Underwriters at Lloyd's, London

35 A.D.3d 282, 827 N.Y.S.2d 34

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered January 9, 2006, as corrected by order entered March 2, 2006, which denied defendant’s motion to dismiss the complaint for failure to state a cause of action, granted plaintiffs cross motion for partial summary judgment, and ordered defendant to defend plaintiff in the underlying personal injury action until further order of the court determining whether the evidence in that action brought the claims within the assault and battery exclusion of the insurance policies, unanimously affirmed, without costs.

The court correctly ruled that until the facts of the underlying action are established, it cannot be concluded as a matter of law that there is no possible factual or legal basis on which defendant might eventually be held obligated to indemnify plaintiff under any provision of the insurance policies (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 424 [1985]). Concur—Saxe, J.P., Sullivan, Nardelli, Sweeny and Malone, JJ.