Opinion
December 14, 1993
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Mar Oil's amended complaint against its attorney, plaintiff herein, which concerns plaintiff's improper administration of Mar Oil's escrow account and legal fees, did not only allege fraud, but also alleged, inter alia, breach of fiduciary duty and breach of express and implied contract. (Mar Oil v Morrissey, 982 F.2d 830.) Accordingly, defendant was obligated to provide a defense for plaintiff, pursuant to its professional liability insurance policy issued to plaintiff, since it is clear that the allegations by Mar Oil against plaintiff did not fall "`solely and entirely within the policy exclusions'" (Technicon Elecs. Corp. v American Home Assur. Co., 74 N.Y.2d 66, 73, quoting International Paper Co. v Continental Cas. Co., 35 N.Y.2d 322, 325). Notably, it is the pleaded facts, and not the conclusory assertions, which dictate whether the insurance policy's coverage exclusions apply to the insurer's duty to defend (see, Allstate Ins. Co. v Mugavero, 79 N.Y.2d 153, 162).
We have considered all of defendant's assertions and find them to be without merit.
Concur — Ellerin, J.P., Kupferman, Rubin and Nardelli, JJ.