Drake Ins. Co. v. Block 7206 Corp.

5 Citing cases

  1. Anderson v. Burlington Ins. Co.

    19-CV-297 (HKS) (W.D.N.Y. Jun. 1, 2023)   Cited 3 times
    In Anderson, each successive iteration of the plaintiff's complaint realleged the claims of assault and battery contained in the original complaint; in contrast, the Amended Complaint in this case does not carry over the allegations of assault and battery from the Original Complaint.

    “This is so despite the conclusory allegations of negligence.” Sphere Drake Ins. Co. v. Block 7206 Corp., 237 A.D.2d 427, 428 (2nd Dep't 1997). Accordingly, Burlington did not owe a duty to defend Sinful in the Underlying Action.

  2. U.S. Fid. Guar. v. New York, Susquehanna

    277 A.D.2d 1026 (N.Y. App. Div. 2000)   Cited 2 times

    Supreme Court erred in denying defendant's motion seeking the attorney's fees and costs incurred in defending this action. By commencing this action, plaintiff has "cast [defendant] in a defensive posture by the legal steps [plaintiff has taken] in an effort to free itself from its policy obligations" ( Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21), and thus defendant is entitled to recover from plaintiff the attorney's fees and costs incurred in defending this action ( see, Allegany Co-op Ins. Co. v. Williams, 216 A.D.2d 894, 895, lv denied 87 N.Y.2d 806; see also, Reliance Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 262 A.D.2d 64, 66; Mohawk Minden Ins. Co. v. Ferry, 251 A.D.2d 846, 849; Sphere Drake Ins. Co. v. Block 7206 Corp., 237 A.D.2d 427, 428; U.S. Liab. Ins. Co. v. Staten Is. Hosp., 162 A.D.2d 445, 447). The fact that plaintiff initially paid the cost of defendant's defense in the underlying action is of no moment. "[A]n insurer's responsibility to defend reaches the defense of any actions arising out of the occurrence" ( Mighty Midgets v. Centennial Ins. Co., supra, at 21 [emphasis in original]), including a declaratory judgment action such as this commenced by the insurer ( see, Chase Manhattan Bank v. Each Individual Underwriter Bound to Lloyd's Policy No. 790/004A89005, 258 A.D.2d 1, 5).

  3. Sphere Drake Ins. v. Block 7206

    265 A.D.2d 78 (N.Y. App. Div. 2000)   Cited 24 times

    As a threshold issue, we find that the defendants failed to rebut Sphere Drake's prima facie showing that an assault and battery exclusion was part of each policy (see, Metzgar v. Aetna Ins. Co., 227 N.Y. 411; Matter of Sarah K., 66 N.Y.2d 223, cert denied 475 U.S. 1108; Northville Indus. Corp. v. Fort Neck Oil Terms., 100 A.D.2d 865, affd 64 N.Y.2d 930). The exclusions encompassed claims "arising out of" an assault and battery caused by either the intentional conduct or negligence of the insured. They are applicable to the facts giving rise to Ilchert's claims (see, Mount Vernon Fire Ins. Co. v. Creative Hous. Ltd., 88 N.Y.2d 347; U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821; Sphere Drake Ins. Co. v. Block 7206 Corp., 237 A.D.2d 427). Thus, Sphere Drake properly disclaimed coverage based on the assault and battery exclusions.

  4. Genesee Patrons Co-op. Ins. Co. v. Hopkins

    248 A.D.2d 993 (N.Y. App. Div. 1998)

    Thus, plaintiff's disclaimer was untimely as a matter of law (see, Utica Fire Ins. Co. v. Spagnolo, 221 A.D.2d 921, 922; Gill v. Gouchie, 210 A.D.2d 954, 955, lv denied 86 N.Y.2d 701). We also conclude that the court properly awarded attorneys' fees to the Hopkins (see, Sphere Drake Ins. Co. v. Block 7206 Corp., 237 A.D.2d 427; see also, Allegany Co-Op Ins. Co. v. Williams, 216 A.D.2d 894, 895, lv denied 87 N.Y.2d 806). In light of our determination, we do not reach the remaining issues raised by the parties.

  5. Dudley's Restaurant, v. United Nat. Ins. Co.

    247 A.D.2d 425 (N.Y. App. Div. 1998)   Cited 11 times

    Eric Santarlasci alleged, inter alia, that the "bouncers" employed by Dudley's Restaurant, Inc. (hereinafter Dudley's) "did not control or stop" certain intoxicated patrons of Dudley's who "wrongfully, unlawfully, maliciously, and without valid reasons or probable cause [struck Santarlasci] to and about his body". Contrary to the arguments advanced by Dudley's in the Supreme Court and on appeal, any liability which might possibly be imposed on it in the underlying action would fall squarely within the terms of the "assault battery exclusion endorsement" of its insurance policy, which excludes coverage in connection with "claims arising out of Assault and Battery, whether caused * * * at the instigation of * * * or omission by the Insured [its] employees patrons or any cause whatsoever" ( see, Sphere Drake Ins. Co. v. 72 Centre Ave. Corp., 238 A.D.2d 574; see also, Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347; U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, Sphere Drake Ins. Co. v. Block 7206 Corp., 237 A.D.2d 427; United Natl. Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105; The Tunnel v. Bernstein, 988 F.2d 351). We see no merit to the contention of Dudley's that the "assault battery exclusion endorsement" is ambiguous in light of the policy's definition of "occurrence".