Opinion
April 26, 1993
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that the order and judgment is affirmed, with costs.
The defendant Sugulabhat Boonyam and his parents, Sagol and Subhattra Boonyam, were sued in an underlying action to recover damages for the wrongful death of David Chow, after Sugulabhat Boonyam, then a minor, allegedly struck Chow in the head with a hammer several times and inflicted multiple stab wounds to his chest. Chow, who was 15 years old at the time of the incident, was survived by his parents, who instituted the underlying action. We find that the plaintiff, Allstate Insurance Company, tendered sufficient evidentiary proof in admissible form to establish its entitlement to summary judgment in the declaratory judgment action (see, Zuckerman v City of New York, 49 N.Y.2d 557). We also find that the record established that any recovery in the underlying action will be based upon the intentional torts of assault and battery, rather than negligence (see, New York Cas. Ins. Co. v Ward, 139 A.D.2d 922, 923; Mazzaferro v Albany Motel Enters., 127 A.D.2d 374, 376; Trott v Merit Dept. Store, 106 A.D.2d 158, 160; see also, Allstate Ins. Co. v Mugavero, 79 N.Y.2d 153). Accordingly, since the plaintiff has unequivocally established that the harm caused was not within the coverage of the policy, the Supreme Court's award of summary judgment in its favor and declaration that it was no longer obligated to defend or indemnify Sugulabhat Boonyam in the underlying action was proper (see, New York Cas. Ins. Co. v Ward, supra). Eiber, J.P., O'Brien, Ritter and Copertino, JJ., concur.