Opinion
2012-11-14
STATE FARM FIRE AND CASUALTY COMPANY, plaintiff-respondent, v. Sean RAABE, appellant, Joseph Alessi, et al., defendants-respondents, et al., defendants.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Arthur J. Smith and Anne Marie Garcia of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John J. Nicolini of counsel), for plaintiff-respondent.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Arthur J. Smith and Anne Marie Garcia of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John J. Nicolini of counsel), for plaintiff-respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Joseph Alessi in an underlying personal injury action entitled Bisignano v. Raabe, pending in the Supreme Court, Nassau County, under Index Number 17128/08, the defendant Sean Raabe appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated August 23, 2011, as denied his motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify the defendant Joseph Alessi in the underlying action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff, State Farm Fire and Casualty Company, commenced this action seeking a judgment declaring that it was not obligated to defend or indemnify the defendant Joseph Alessi in an underlying personal injury action arising from an altercation between Alessi and the defendants Sean Raabe and Anthony Bisignano, Jr., that occurred in the parking lot of the defendant St. Rose of Lima Roman Catholic Church. Issue was joined by each defendant and, after discovery was completed and a note of issue was filed, Raabe moved for summary judgment declaring that State Farm is obligated to defend and indemnify Alessi in the underlying action. State Farm opposed the motion. In an order dated August 23, 2011, the Supreme Court, inter alia, denied the motion, determining that in opposition to Raabe's showing that State Farm failed to comply with Insurance Law § 3420(d)(2), State Farm raised triable issues of fact as to whether the underlying incident was an accident or an intentional act and, thus, whether it was a covered occurrence under the subject insurance policy. Raabe appeals. We affirm.
Raabe established his prima facie entitlement to judgment as a matter of law by submitting evidence that State Farm failed to give written notice of disclaimer to all interested parties in the underlying action pursuant to Insurance Law § 3420. In opposition, however, State Farm raised triable issues of fact.
While State Farm does not dispute that it did not provide timely written notice to all interested parties in the underlying action, it contends that it was not required to do so. “A disclaimer pursuant to Insurance Law § 3420(d) is unnecessary when a claim does not fall within the coverage terms of an insurance policy” ( York Restoration Corp. v. Solty's Constr., Inc., 79 A.D.3d 861, 863, 914 N.Y.S.2d 178;see Markevics v. Liberty Mut. Ins. Co., 97 N.Y.2d 646, 648, 735 N.Y.S.2d 865, 761 N.E.2d 557;Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188, 712 N.Y.S.2d 433, 734 N.E.2d 745;Siragusa v. Granite State Ins. Co., 65 A.D.3d 1216, 1217, 886 N.Y.S.2d 432). “An insurer is not required to deny coverage where none exists” ( York Restoration Corp. v. Solty's Constr., Inc., 79 A.D.3d at 863, 914 N.Y.S.2d 178;see Hargob Realty Assoc., Inc. v. Fireman's Fund Ins. Co., 73 A.D.3d 856, 858, 901 N.Y.S.2d 657). “Therefore, when a claim is denied because the claimant is not an insured under the policy, there is no statutory obligation to provide prompt notice of the disclaimer” ( York Restoration Corp. v. Solty's Constr., Inc., 79 A.D.3d at 863, 914 N.Y.S.2d 178;see Hargob Realty Assoc., Inc. v. Fireman's Fund Ins. Co., 73 A.D.3d at 858, 901 N.Y.S.2d 657;Siragusa v. Granite State Ins. Co., 65 A.D.3d at 1217, 886 N.Y.S.2d 432;Matter of Nationwide Ins. Co. v. Smaller, 271 A.D.2d 537, 537–538, 706 N.Y.S.2d 140;Matter of Fireman's Fund Ins. Co. v. Freda, 156 A.D.2d 364, 366, 548 N.Y.S.2d 319).
We reject Raabe's contention that the policy at issue is ambiguous. The policy issued by the plaintiff defines “occurrence” as an “accident ... which results in ... bodily injury” and expressly provides that it does “not apply to (a) bodily injury or property damage: (1) which is either expected or intended by an insured; or (2) which is the result of willful and malicious acts of the insured.” Thus, to the extent that any injuries sustained by the plaintiff in the underlying personal injury action arose from intentional acts, the policy here affords no coverage, and compliance with the disclaimer requirement of Insurance Law § 3420(d) was unnecessary ( see Matter of Nassau Insurance Co. [ Bergen—Superintendent of Ins.], 78 N.Y.2d 888, 573 N.Y.S.2d 447, 577 N.E.2d 1039;Desir v. Nationwide Mut. Fire Ins. Co., 50 A.D.3d 942, 856 N.Y.S.2d 664; John Hancock Prop. & Cas. Ins. Co. v. Warmuth, 205 A.D.2d 587, 588, 613 N.Y.S.2d 250).
Here, State Farm's submissions raised a triable issue of fact as to whether the incident giving rise to the injuries fell beyond the coverage terms of its policy ( see Desir v. Nationwide Mut. Fire Ins. Co., 50 A.D.3d 942, 856 N.Y.S.2d 664;Allstate Ins. Co. v. Schimmel, 22 A.D.3d 616, 802 N.Y.S.2d 510;Tangney v. Burke, 21 A.D.3d 367, 800 N.Y.S.2d 44;Diviney v. Aetna Life & Cas. Co., 257 A.D.2d 643, 682 N.Y.S.2d 675).
Accordingly, the Supreme Court properly denied Raabe's motion for summary judgment declaring that State Farm is obligated to defend and indemnify Alessi in the underlying action.
The parties' remaining contentions are without merit, or need not be considered in light of our determination.