The plaintiff established, prima facie, that the incident at issue was not an "occurrence" giving rise to policy coverage. Despite the manner in which the cause of action in the underlying action was labeled by Paolino, the assault alleged therein was an intentional act, which did not constitute an "occurrence" within the meaning of the policy (see Rinaldi v Wakmal, 183 A.D.3d 652, 654; Allstate Ins. Co. v Schimmel, 22 A.D.3d 616, 616). In opposition, the defendants failed to raise a triable issue of fact.
The plaintiff failed to demonstrate that the exception to the exclusion applies because the complaint in the underlying action contained allegations unrelated to advertising injury (see Castillo v. Prince Plaza, LLC, 164 A.D.3d at 1419–1420, 84 N.Y.S.3d 529 ; see alsoSpandex House, Inc. v. Hartford Fire Ins. Co., 407 F.Supp.3d 242 [S.D. N.Y.], affd 816 Fed.Appx. 611 [2d Cir.] ). Since there is no legal basis upon which the defendant could be held liable for coverage, it has no obligation to defend or indemnify the plaintiff (see Rinaldi v. Wakmal, 183 A.D.3d 652, 123 N.Y.S.3d 156 ; Desir v. Nationwide Mut. Fire Ins. Co., 50 A.D.3d 942, 856 N.Y.S.2d 664 ). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment, in effect, declaring that it is not obligated to defend or indemnify the plaintiff in the underlying action.
In Rinaldi v. Wakmal, the Second Department interpreted an identical provision in a defendant's automobile insurance policy. 183 A.D.3d 652, 653, 123 N.Y.S.3d 156, 159 (2d Dep't 2020). The court found that “the incident at issue, a physical altercation which occurred after [plaintiff and defendant] had left their respective vehicles, did not arise from the ownership, maintenance, or use of the covered vehicle.
("The Mahabirs’ claims that XLNT's employees acted ‘with intent to injure,’ and committed ... intentional infliction of emotional distress ... are thus not covered by the policy."); Servidone Const. Corp. v. Sec. Ins. Co. of Hartford , 64 N.Y.2d 419, 423, 477 N.E.2d 441, 488 N.Y.S.2d 139 (1985) ("[T]here can be no duty to indemnify unless there is first a covered loss."); Rinaldi v. Wakmal , 183 A.D.3d 652, 123 N.Y.S.3d 156, 159 (N.Y. App. Div., 2d Dep't 2020) ("[T]he assault alleged therein was an intentional act, which did not constitute an "occurrence" within the meaning of Utica's policy.... Since there was, accordingly, no legal basis upon which Progressive or Utica could be held liable for coverage, they had no obligation to defend or indemnify Rinaldi.").
Contrary to State Farm's contention, the Supreme Court properly denied that branch of its motion which was for summary judgment declaring that it is not obligated to defend or indemnify Russo in the third-party action. State Farm failed to demonstrate, prima facie, that the incident at issue did not constitute an "occurrence" within the meaning of the subject policy (see New York Cent. Mut. Fire Ins. Co. v Steely, 29 A.D.3d 967, 967; cf. Rinaldi v Wakmal, 183 A.D.3d 652, 654) or that the subject policy exclusions preclude coverage for the incident (cf. Unitrin Auto and Home Ins. Co. v Sullivan, 179 A.D.3d 970, 972).
The Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment on so much of the cause of action to recover damages for breach of the duty to defend as alleged that First American breached its duty to defend the plaintiff in the Countrywide action. The plaintiff failed to establish, prima facie, that the allegations of the complaint in the Countrywide action potentially give rise to a claim covered by the policy (see Rinaldi v Wakmal, 183 A.D.3d 652; Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 A.D.3d 665; Belsito v State Farm Mut. Ins. Co., 27 A.D.3d 502, 502-503). The Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment on the cause of action to recover damages for conversion.
"The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage" (Bruckner Realty, LLC v County Oil Co., Inc., 40 A.D.3d 898, 900). "An insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" (Pro's Choice Beauty Care, Inc. v Great N. Ins. Co., 190 A.D.3d 868, 870). An insurer may be relieved of its duty to defend if it demonstrates, as a matter of law, that there is no possible factual or legal basis on which it may be obligated to indemnify its insured under any policy provision (see Rinaldi v Wakmal, 183 A.D.3d 652). Here, the Court of Claims properly granted the State's cross motion for summary judgment declaring that United is obligated to defend it in the main claim.
"The duty to defend is triggered whenever the allegations of a complaint, liberally construed, suggest a reasonable possibility of coverage, or the insurer has actual knowledge of facts establishing a reasonable possibility of coverage" (Bruckner Realty, LLC v County Oil Co., Inc., 40 AD3d 898, 900). "An insurer's duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy" (Pro's Choice Beauty Care, Inc. v Great N. Ins. Co., 190 AD3d 868, 870). An insurer may be relieved of its duty to defend if it demonstrates, as a matter of law, that there is no possible factual or legal basis on which it may be obligated to indemnify its insured under any policy provision (see Rinaldi v Wakmal, 183 AD3d 652). Here, the Court of Claims properly granted the State's cross motion for summary judgment declaring that United is obligated to defend it in the main claim.
As such, Harleysville established that a causal relationship between the boom truck and the incident was lacking and Wausau fails to rebut that showing (see id.; Empire Ins. Co. v Schliessman, 306 A.D.2d 512, 514 [2d Dept 2003]; Eagle Ins. Co. v Butts, 269 A.D.2d 558, 559 [2d Dept 2000]). Therefore, Harleysville is not obligated to defend or indemnify Tully in the underlying action (see Tishman Constr. Corp. v Zurich Am. Ins. Co., 204 A.D.3d 623, 625 [1st Dept 2022]; Rinaldi v Wakmal, 183 A.D.3d 652, 654 [2d Dept 2020]).
"[M]ore than a causal connection between the intentional act and the resultant harm is required to prove that the harm was intended" ( Allstate Ins. Co. v Mugavero , 79 NY2d 153, 160 [1992] ). While the Mugavero case is centered on an "intentionally caused" policy exclusion, and the narrow class of cases in which such an exclusion applies regardless of the insured's subjective intent, the case is often used by courts to discuss cases where an intent to injure is inferable from the very nature of the act (seeUnitrin Auto and Home Ins. Co. v Sullivan , 179 AD3d 970, 971[2d Dept 2020] ; Allstate Ins. Co. v Schimmel , supra ; Rinaldi v Wakman , 183 AD3d 652 [2d Dept 2020] ; Ciminello v Sullivan , 65 AD3d 1002 [2d Dept 2009] ; Pistolesi v Nationwide Mut. Fire Ins. Co. , 223 AD2d 94 [3d Dept 1996] ; Travelers Ins. Companies v Stanton , 223 AD2d 104 [3d Dept 1996] ; Monter v CNA Ins. Cos . , supra ). It must be remembered that there is no cause of action in New York to recover damages for negligent assault (seeSchetzen v Robotsis , 273 AD2d 220 [2d Dept 2000] ; Mazzaferro v Albany Motel Enters ., 127 AD2d 374, 376 [3d Dept 1987] ).