Opinion
3483.
Decided April 27, 2004.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 29, 2002, which denied plaintiff's motion for summary judgment, unanimously affirmed, with costs.
London Fischer LLP, New York (Patrick J. McCreesh of counsel), for appellant.
Ohrenstein Brown LLP, New York (Abraham E. Havkins of counsel), for respondent.
Before: Nardelli, J.P., Saxe, Sullivan, Gonzalez, JJ.
The underlying assault was a covered "occurrence" under the insured's policy, and the claimed exclusion was inapplicable ( Agoado Realty Corp. v. United Intl. Ins. Co., 95 N.Y.2d 141; see RJC Realty Corp. v. Republic Franklin Ins. Co., 2 N.Y.3d 158 2004 WL 635279 [April 1, 2004]). While the court should not have addressed the insurer's argument, which was raised improperly for the first time in reply ( see Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562) and was not based on any notice or pleading seeking relief against respondent, the denial of relief grounded on an asserted late notice of claim by the purported additional insured ( see Structure Tone v. Burgess Steel Prods. Corp., 249 A.D.2d 144, 145) was proper ( see New York Tel. Co. v. Travelers Cas. Sur. Co. of Am., 280 A.D.2d 268; National Union Fire Ins. Co. of Pittsburgh v. Insurance Co. of N. Am., 188 A.D.2d 259, 261, lv denied 81 N.Y.2d 709).
We have considered appellant's other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.