Opinion
2002-00714, 2003-01780
Argued January 16, 2003.
March 10, 2003.
In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend and/or indemnify the defendant in an underlying action entitled Leno v. DePasquale, pending in the Supreme Court, Nassau County, under Index No. 5050/00, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Segal, J.), dated December 24, 2001, which granted the plaintiff's motion, inter alia, for summary judgment and denied his cross motion for summary judgment declaring that the plaintiff is obligated to defend and indemnify him in the underlying action, and (2) a judgment of the same court, entered January 15, 2002, which, in effect, declared that the plaintiff is not obligated to defend and/or indemnify the defendant in the underlying action. The notice of appeal from the order is also deemed to be a notice of appeal from the judgment (see CPLR 5501[c]). Presiding Justice Prudenti has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c]).
Anderson, Kill Olick, P.C., New York, N.Y. (Eugene R. Anderson, John H. Doyle III, and Jean Farrell of counsel), for appellant.
Feldman, Rudy, Kirby Farquharson, P.C., Westbury, N.Y. (Gerald F. Kirby of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., SANDRA J. FEUERSTEIN, LEO F. McGINITY, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1]).
The plaintiff established that the allegations contained in the underlying complaint do not constitute an occurrence under the insurance policy it issued to the defendant (see Miller v. Continental Ins. Co., 40 N.Y.2d 675; Syvertsen v. Great Am. Ins. Co., 267 A.D.2d 854, 856). The plaintiff demonstrated that the policy's intentional acts exclusion applies to the defendant's claim (see Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153; Syvertsen v. Great Am. Ins. Co., supra).
The defendant's remaining contentions are without merit.
PRUDENTI, P.J., FEUERSTEIN, McGINITY and H. MILLER, JJ., concur.