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Willard v. Preferred Mutual Insurance Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 30, 1997
242 A.D.2d 960 (N.Y. App. Div. 1997)

Summary

finding that the plaintiff's conduct fell within the intentional act exclusion of an insurance policy

Summary of this case from NXIVM Corp. v. Sutton

Opinion

September 30, 1997

Appeals from Order of Supreme Court, Erie County, Rath, Jr., J.

Present — Pine, J.P., Lawton, Wisner, Callahan and Doerr, JJ.


We conclude that defendant met its burden of proving that the claim falls within the intentional act exclusion of the policy. In determining whether a policy exclusion applies, the facts alleged in the complaint, rather than the conclusory assertions found therein, are controlling ( see, Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 162). The essential facts asserted in the Sauer complaint are that plaintiff defamed Sauer by falsely accusing him of criminal acts. That conduct falls within the intentional act exclusion in the policy ( see, Shapiro v. Glens Falls Ins. Co., 39 N.Y.2d 204; Brandstetter v. USAA Cas. Ins. Co., 163 A.D.2d 349, 350, lv dismissed and lv denied 78 N.Y.2d 1027; Weinberg v. Insurance Co., 88 Misc.2d 82, 83-84). Because no cause of action would exist "but for" the defamation, the conclusory assertion in the Sauer complaint that plaintiff was negligent is insufficient to obligate defendant to defend or indemnify plaintiff ( see, Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347, 350-352; U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 822-823).

In light of our decision, we do not reach defendant's remaining contention. We modify the order, therefore, by granting defendant's cross motion and granting judgment in favor of defendant, declaring that it has no obligation to defend or indemnify plaintiff in the underlying action.


Summaries of

Willard v. Preferred Mutual Insurance Co.

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 30, 1997
242 A.D.2d 960 (N.Y. App. Div. 1997)

finding that the plaintiff's conduct fell within the intentional act exclusion of an insurance policy

Summary of this case from NXIVM Corp. v. Sutton
Case details for

Willard v. Preferred Mutual Insurance Co.

Case Details

Full title:DIANE WILLARD, Appellant-Respondent, v. PREFERRED MUTUAL INSURANCE…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 30, 1997

Citations

242 A.D.2d 960 (N.Y. App. Div. 1997)
662 N.Y.S.2d 342

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