Opinion
No. 13434/10.
2012-01-5
Maksim DMITRIYEV, Plaintiff, v. TOWER INSURANCE COMPANY OF NEW YORK, Defendant.
James R. Langione, Esq., Galasso Langione Catterson & LoFrumento, LLP, Garden City, for Plaintiff. Jennifer Kotlyarsky, Esq., Law Office of Max W. Gershweir, NY, for Defendant.
James R. Langione, Esq., Galasso Langione Catterson & LoFrumento, LLP, Garden City, for Plaintiff. Jennifer Kotlyarsky, Esq., Law Office of Max W. Gershweir, NY, for Defendant.
ARTHUR M. SCHACK, J.
Plaintiff MAKSIM DMITRIYEV (DMITRIYEV) obtained a $1,276,000 default judgment, at an inquest, on July 9, 2009, against 16th STREET SATELLITE, INC. (16th ST.), for personal injuries sustained in a July 16, 2006–incident at the retail food premises operated by 16th ST., at 1603 Avenue U, Brooklyn, New York. ( Dmitriyev v. Chen, et al., Index No. 12888/07, Supreme Court, Kings County). In the instant action, pursuant to Insurance Law § 3420(b)(1), plaintiff DMITRIYEV seeks payment of the $1,276,000 default judgment from defendant TOWER INSURANCE COMPANY OF NEW YORK (TOWER), 16th ST.'s insurer.
Defendant TOWER moves for summary judgment and dismissal of plaintiff DMITRIYEV's complaint, pursuant to CPLR Rule 3212. First, TOWER claims that the commercial general liability insurance policy in effect on July 16, 2006 with 16th ST. excluded coverage for bodily injury claims “arising from, due to or caused by ... Assault and/or Battery committed by any insured, any employee of any insured, any patron or customer of the insured, or any other person.” Second, TOWER asserts that coverage is barred because its insured, 16th ST., failed to promptly notify TOWER “as soon as practicable.” Plaintiff DMITRIYEV opposes the instant motion, claiming: he did not allege that his injuries were the result of an intentional act; and; insured 16th ST.'s notice to TOWER was “as soon as practicable.”
The Court grants summary judgment to TOWER. Defendant TOWER's assault and battery exclusion in its insurance contract with 16th ST. is due to lack of coverage for the July 16, 2006–incident at 16th ST.'s premises. Therefore, TOWER'S intentional tort exclusion for assault and battery is dispositive of the instant motion and action. Thus, the Court does not have to address the “as soon as practicable” notice issue.
Background
Plaintiff DMITRIYEV, at about 5:00 A.M. on July 16, 2006, was a patron at 16th ST.'s food establishment, when he was stabbed twice in the chest by an unknown alcohol ingesting patron. Plaintiff's complaint in the underlying Dmitriyev v. Chen, et al. action alleged two causes of action: negligent supervision and inadequate security at 16th ST.'s premises; and, defendant insureds' willful and wanton reckless disregard for plaintiff's safety. Plaintiff sought both compensatory and punitive damages against defendant insureds for his alleged injuries.The insured notified TOWER more than two months after the incident. TOWER disclaimed coverage because of the reporting delay and the policy's intentional tort exclusion for assault and/or battery. The assault and/or battery exclusion in the insured's policy states:
COMMERCIAL GENERAL LIABILITY COVERAGE PART LIQUOR LIABILITY COVERAGE PART
1.This insurance does not apply to Bodily Injury or Property Damage arising from, due to or caused by:
a.Assault and/or Battery committed by an insured, any employee of any insured, any patron or customer of the insured, or any other person; or
b.The failure to suppress or prevent any Assault and/or Battery or any act or omission in connection with any Assault and/or Battery; or
c.The negligent hiring, supervision or training of any employee or agent of the insured with respect to the events described in a. and b. above.
After plaintiff DMITRIYEV obtained his $1,276,000 default judgment against TOWER'S insured, plaintiff DMITRIYEV commenced the instant action on May 27, 2010. Defendant TOWER answered the summons and complaint on July 22, 2010, asserting various affirmative defenses, including the assault and/or battery exclusion and the failure of its insured to give TOWER notice of the incident “as soon as practicable.”
Summary Judgment Standard
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. ( See Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980];Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985];Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc., 51 A.D.3d 651, 652, 857 N.Y.S.2d 234 [2d Dept 2008]; Greenberg v. Manlon Realty, 43 A.D.2d 968, 969, 352 N.Y.S.2d 494 [2nd Dept 1974] ).
CPLR Rule 3212(b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law “that there is no defense to the cause of action or that the cause of action or defense has no merit.” The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v. Rome Realty Leasing Ltd. Partnership, 21 A.D.3d 920, 921, 801 N.Y.S.2d 340 [2d Dept 2005]; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 [2d Dept 1990] ). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v. Associated Fur Mfrs., 46 N.Y.2d 1065 [1979];Fotiatis v. Cambridge Hall Tenants Corp., 70 A.D.3d 631, 632, 895 N.Y.S.2d 456 [2d Dept 2010] ).
Discussion
Defendant TOWER demonstrates its entitlement to summary judgment based upon the clear and unambiguous interpretation of the insurance contract, a written agreement, with its insured, 16th ST. (West, Weir & Bartel, Inc. v. Mary Carter Paint Co., 25 N.Y.2d 535, 536 [1969] ). “Generally, the courts bear the responsibility of determining the rights or obligations of parties under insurance contracts based on the specific language of the policies.” (State v. Home Indem. Co., 66 N.Y.2d 669, 671 [1985] ).
Thus, the Court must examine the language used in the subject insurance policy, a contract between the parties. (Fieldston Prop. Owner's Assoc. Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264 [2011];Raymond Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 5 N.Y.3d 157, 162 [2005] ). “As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning ( see Teichman v. Community Hosp. of W. Suffolk, 87 N.Y.2d 514, 520 [1996], and the interpretations of such provisions is a question of law for the court ( see Bailey v. Fish & Neave, 8 N.Y.3d 523 [2007];Chimart Assoc. v. Paul, 66 N.Y.2d 570 [1986] ).” (White v. Continental Cas. Co., 9 N.Y.3d 264, 267 [2007] ). ( See Vigilant Ins. Co. v. Bear Stearns Cos., Inc., 10 N.Y.3d 170, 177 [2008];Nisari v. Ramjohn, 85 A.D.3d 987, 989, 927 N.Y.S.2d 358 [2d Dept 2011]; Appleby v. Chicago Title Ins. Co., 80 A.D.3d 546, 549 [2011] ). Moreover, “[a] contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis a difference of opinion' (Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 355 [1978],rearg. denied46 N.Y.2d 940 [1979] ).”
(Greenfield v. Phillies Records, 98 N.Y.2d 562, 569 [2002] ).
Defendant insurer TOWER, to establish that it had no duty to defend or indemnify its insured, 16th ST., pursuant to a policy exclusion has the burden of demonstrating that the exclusion is “unambiguously applicable to the pleaded allegations of the claims in issue.” (Duncan Petroleum Transport Inc. v. Aetna Ins. Co., 96 A.D.2d 942, 943, 466 N.Y.S.2d 394 [2d Dept.1983] ), affd61 N.Y.2d 665 [1983] ). The Court may relieve an insurer of its duty to defend and indemnify where the Court “can determine that no basis for recovery within the coverage of the policy is stated in the complaint.” (Lionel Freedman, Inc. v. Glens Falls Ins. Co., 27 N.Y.2d 364, 368 [1971] ). ( See Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 163 [1991] ).
In the instant action, the assault and/or battery exclusion is clearly unambiguous and excludes coverage for injuries alleged to have resulted from an assault and/or battery. (Mount Vernon Fire Ins. Co. v. Creative Housing, Ltd., 88 N.Y.2d 347 [1996];U.S. Underwriters Ins. Co. v. Val–Blue Corp., 85 N.Y.2d 821 [1995]. “If no cause of action would exist but for' the assault, it is immaterial whether the assault was committed by the insured or an employee of the insured on the one hand, or by a third party on the other.” (Mount Vernon Fire Ins. Co. v. Creative Housing, Ltd. at 353, 645 N.Y.S.2d 433, 668 N.E.2d 404). ( See WSTC Corp. v. National Speciality Ins. Co., 67 A.D.3d 781, 783, 888 N.Y.S.2d 602 [2d Dept 2009] ); Desir v. Nationwide Mut. Fire Ins. Co., 50 A.D.3d 942, 856 N.Y.S.2d 664 [2d Dept 2008]; Anastasis v. American Safety Indem. Co., 12 A.D.3d 628, 629, 786 N.Y.S.2d 88 [2d Dept 2004] ).
Plaintiff DMITRIYEV, in his opposition to the instant motion, argues that his stabbing was not intentional, despite his admission at the July 16, 2009–inquest that he was stabbed twice. Further, plaintiff DMITRIYEV argues that his injuries didn't result from an assault and/or battery, but from 16th ST.'s: negligent supervision at the premises; inadequate security at the premises; and, willful and wanton reckless disregard for plaintiff's safety. This argument lacks merit. Plaintiff's injuries would not have occurred “but for” the intentional battery committed upon him. “The plethora of claims surrounding [plaintiff's] injury, including those for ... negligent hiring and supervision' are all based on' that assault and battery without which [plaintiff] would have no cause of action.” (U.S. Underwriters Ins. Co. v. Val–Blue Corp. at 823, 623 N.Y.S.2d 834, 647 N.E.2d 1342). “The language of the policy controls this question and while the theory pleaded may be the insured's negligent failure to maintain safe premises, the operative act giving rise to any recovery is the assault ... Merely because the insured might be found liable under some theory of negligence does not overcome the policy's exclusion for injury arising from assault.” (Mount Vernon Fire Ins. Co. v. Creative Housing, Ltd. at 352, 645 N.Y.S.2d 433, 668 N.E.2d 404).
Plaintiff DMITRIYEV fails to offer any evidence to demonstrate that the July 16, 2006 underlying incident at 16th ST.'s premises was not the product of an intentional assault and battery. “TOWER demonstrated its entitlement to judgment as a matter of law by establishing that the assault and battery exclusion is applicable to the claims asserted ... in the underlying action.” ( Marina Grand, Inc. v. Tower Ins. Co. of New York, i63 AD3d 1012, 1014 [2d Dept 2009] ). ( See Burgand v. ESP Café, Inc., 84 A.D.3d 849, 924 N.Y.S.2d 401 [2d Dept 2011]; WSTC Corp. v. National Speciality Ins. Co. at 783, 888 N.Y.S.2d 602). Therefore, defendant TOWER's motion for summary judgment is granted. The instant action is dismissed.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendant TOWER INSURANCE COMPANY OF NEW YORK for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212, is granted.
This constitutes the Decision and Order of the Court.