New York Casualty Insurance v. Ward

Appellate Division of the Supreme Court of New York

New York Casualty Insurance v. Ward

139 A.D.2d 922, 527 N.Y.S.2d 913, 1988 N.Y. App. Div. LEXIS 4268

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

DecidedApril 8, 1988

StatusPublished

Cited by20 cases

This text of 139 A.D.2d 922 (New York Casualty Insurance v. Ward) 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

New York Casualty Insurance v. Ward, 139 A.D.2d 922, 527 N.Y.S.2d 913, 1988 N.Y. App. Div. LEXIS 4268 (N.Y. Ct. App. 1988).

Pincite

Opinion

—Judgment unanimously reversed on the law without costs and summary judgment granted to plaintiff in accordance with the following memorandum: Plaintiff appeals from an order denying its motion for summary judgment in an action for a declaratory judgment that it has no duty to defend or indemnify defendant Patrick Ward, its insured. Ward has been sued in an underlying action for injuries he caused when he punched an acquaintance in the face on two occasions. Plaintiff sought summary judgment in the declaratory judgment action on the ground that its insured’s liability could be based only on an intentional assault which is specifically excluded from coverage under its policy.

[923]*923Special Term erred in denying plaintiffs motion. Although normally a determination of coverage should not be made in advance of the trial of the underlying action (see, Prashker v United States Guar. Co., 1 NY2d 584), the unique circumstances presented and a concern for judicial economy require a different result here. Since the record establishes that the insured punched the acquaintance in retaliation for obscene gestures and disparaging remarks he made, any recovery in the underlying action will be based upon the intentional tort of assault and battery, rather than negligence, (see, Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376; Trott v Merit Dept. Store, 106 AD2d 158, 160). Defendant’s claims to the contrary in an attorney’s affidavit are merely conclusory and unsupported by the record and insufficient to defeat plaintiffs motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320, 325). Accordingly, since plaintiff has unequivocally established that the harm caused was not within the coverage of the policy, plaintiff is entitled to summary judgment and a declaration that it is no longer obligated to defend or indemnify the defendant in the underlying action (see, Colon v Aetna Life & Cas. Ins. Co., 66 NY2d 6, 10; Sturges Mfg. Co. v Utica Mut. Ins. Co., 37 NY2d 69, 71; McGroarty v Great Am. Ins. Co., 36 NY2d 358, 363; Marine Midland Servs. Corp. v Kosoff & Sons, 60 AD2d 767, 768). We have considered the other issues raised and find each one lacking in merit. (Appeal from judgment of Supreme Court, Jefferson County, Inglehart, J. — declaratory judgment.) Present — Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.

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—Judgment unanimously reversed on the law without costs and summary judgment granted to plaintiff in accordance with the following memorandum: Plaintiff appeals from an order denying its motion for summary judgment in an action for a declaratory judgment that it has no duty to defend or indemnify defendant Patrick Ward, its insured. Ward has been sued in an underlying action for injuries he caused when he punched an acquaintance in the face on two occasions. Plaintiff sought summary judgment in the declaratory judgment action on the ground that its insured’s liability could be based only on an intentional assault which is specifically excluded from coverage under its policy.

[923]*923Special Term erred in denying plaintiffs motion. Although normally a determination of coverage should not be made in advance of the trial of the underlying action (see, Prashker v United States Guar. Co., 1 NY2d 584), the unique circumstances presented and a concern for judicial economy require a different result here. Since the record establishes that the insured punched the acquaintance in retaliation for obscene gestures and disparaging remarks he made, any recovery in the underlying action will be based upon the intentional tort of assault and battery, rather than negligence, (see, Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376; Trott v Merit Dept. Store, 106 AD2d 158, 160). Defendant’s claims to the contrary in an attorney’s affidavit are merely conclusory and unsupported by the record and insufficient to defeat plaintiffs motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320, 325). Accordingly, since plaintiff has unequivocally established that the harm caused was not within the coverage of the policy, plaintiff is entitled to summary judgment and a declaration that it is no longer obligated to defend or indemnify the defendant in the underlying action (see, Colon v Aetna Life & Cas. Ins. Co., 66 NY2d 6, 10; Sturges Mfg. Co. v Utica Mut. Ins. Co., 37 NY2d 69, 71; McGroarty v Great Am. Ins. Co., 36 NY2d 358, 363; Marine Midland Servs. Corp. v Kosoff & Sons, 60 AD2d 767, 768). We have considered the other issues raised and find each one lacking in merit. (Appeal from judgment of Supreme Court, Jefferson County, Inglehart, J. — declaratory judgment.) Present — Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.

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139 A.D.2d 922, 527 N.Y.S.2d 913, 1988 N.Y. App. Div. LEXIS 4268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-casualty-insurance-v-ward-nyappdiv-1988.

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