Opinion
February 18, 1986
Appeal from the Supreme Court, Nassau County (Lockman, J.).
Order affirmed insofar as appealed from, with one bill of costs.
We affirm, but for reasons other than those stated by Special Term. The amended complaint which is presently before us contains allegations insufficient to trigger a duty of the defendant Merchants Mutual Insurance Company to defend the underlying personal injury action. While an insurer's duty to defend its insured is extremely broad (see, Colon v. Aetna Life Cas. Ins. Co., 66 N.Y.2d 6; Ruder Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, rearg denied 54 N.Y.2d 753; Schwamb v. Fireman's Ins. Co., 41 N.Y.2d 947), a court may determine, as a matter of law, that no duty to defend exists if no factual or legal basis for indemnification may be discerned under any of the provisions of the policy in issue (see, Spoor-Lasher Co. v. Aetna Cas. Sur. Co., 39 N.Y.2d 875; Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304; Servidone Constr. Corp. v. Security Ins. Co., 64 N.Y.2d 419). The facts alleged in the plaintiff's amended complaint do not suffice to bring her injury within the coverage afforded by the instant garage liability policy. The use of fireworks as a "diversion" from work duties, even if performed by a garage employee on business premises, does not constitute garage business or activity incidental to garage operations (see, e.g., Davis v. Hartford Acc. Indem. Co., 25 A.D.2d 604; Spiegel v Felton, 206 Misc. 499). Indeed, the use of said fireworks on a single occasion as a "diversion" for the benefit of fellow employees indicates that the acts which caused the plaintiff's injury had nothing to do with business operations. Gibbons, J.P., Brown, Lawrence and Kooper, JJ., concur.