Opinion
September 29, 1980
In a declaratory judgment action, the cross appeals are (1) by defendant David Knight from so much of a judgment of the Supreme Court, Queens County, dated January 29, 1980, as declared that plaintiff is not obligated to defend or indemnify him in an action commenced against him and another by codefendant Joyce Cohen, and (2) by the plaintiff, Nassau Insurance Company, from so much of the same judgment as held it to be obligated to defend and indemnify defendant Mel Jo-Jo Cab Corp. in said action commenced by Cohen. Judgment affirmed, without costs or disbursements. On the facts of this case, and pursuant to the language of the policy of insurance issued by plaintiff to the named insured, Mel Jo-Jo Cab Corp., an assault on the passenger Cohen by the named insured's employee, Knight, constituted an accident with respect to the insurer's obligation to defend its named insured. It did not, however, constitute an accident with respect to the potential obligation to defend Knight. (See Morgan v. Greater N.Y. Taxpayers Mut. Ins. Assn., 305 N.Y. 243; Floralbell Amusement Corp. v. Standard Sur. Cas. Co. of N.Y., 256 App. Div. 221.) Hopkins, J.P., Mangano, O'Connor and Weinstein, JJ., concur. [ 102 Misc.2d 455.]