Perez-Mendez v. Roseland Amusement & Development Corp.

305 A.D.2d 166, 757 N.Y.S.2d 848, 2003 N.Y. App. Div. LEXIS 5268

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 15, 2002, which, in an action for personal injuries sustained in an alleged shooting on defendant amusement park’s premises and a third-party action by the amusement park against its insurer for a declaration of coverage, granted the insurer’s motion for summary judgment declaring that it is not obligated to defend or indemnify the amusement park, unanimously affirmed, without costs.

The subject declaration was properly made upon a complaint alleging that plaintiff was “shot, assaulted, battered and attacked,” and a policy containing a broad exclusion for claims arising out of an assault and battery. It does not avail appellant that issues of fact exist as to exactly how plaintiff was injured. The injury sought to be compensated was allegedly caused by an assault or battery without which plaintiff would have no cause of action. The possible lack of intent to cause that injury, and resulting plethora of possible negligence claims, are irrelevant to the issue of coverage (U.S. Underwriters Ins. Co. v Val-Blue Corp., 85 NY2d 821 [1995]; Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347 [1996]). Concur — Buckley, P.J., Nardelli, Sullivan, Rosenberger and Wallach, JJ.