Public Service Mutual Insurance v. Camp Raleigh, Inc.

233 A.D.2d 273, 650 N.Y.S.2d 136, 1996 N.Y. App. Div. LEXIS 12144

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1996
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Diane Lebedeíf, J.), entered May 6, 1996, which declared that plaintiif Public Service Mutual Insurance Company has no duty to defend and indemnify defendant Camp Raleigh, Inc., under multi-peril or catastrophe umbrella insurance policies, with respect to an underlying personal injury action against defendants David Cooper and Avi Cooper, unanimously affirmed, with costs.

The motion court properly concluded that the sexual molestation allegations in the underlying action do not constitute an accidental "occurrence” under the subject insurance policies issued to defendant Camp Raleigh, Inc. As noted in Board of Educ. v Continental Ins. Co. (198 AD2d 816, 817), "[t]here is nothing accidental about the charges contained in the [underlying] complaint * * * [S]exual abuse * * * is intentional in nature.” Here, the inclusion of causes of action sounding in negligent training and supervision does not alter the fact that "the operative act[s] giving rise to any recovery [are] the [intentional sexual] assault[s]. While the insured’s negligence may have been a proximate cause of plaintiffs’] injuries, that only resolves its liability; it does not resolve the insured’s right to coverage based on the language of the contract between him and the insurer.” (Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 352.) Concur—Rosenberger, J. P., Rubin, Ross, Tom and Andrias, JJ.