Opinion
February 10, 1999
Appeal from Order of Supreme Court, Erie County, Cosgrove, J. — Renewal.
Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.
Order unanimously affirmed with costs. Memorandum: Upon granting the motion of defendant Allstate Insurance Company (Allstate) for renewal, Supreme Court properly adhered to its prior decision denying Allstate's cross motion for summary judgment and granting in part plaintiff's motion for summary judgment by declaring that Allstate has a duty to provide a defense in the underlying action brought by defendant John Eggert against plaintiff. In that action, Eggert seeks damages for burn injuries he sustained when plaintiff used a cigarette lighter to ignite the spray from an aerosol can or bottle and directed the flames onto Eggert. Eggert alleges that his injuries were caused by the negligent, careless and/or reckless conduct of plaintiff and other youths while engaged in horseplay or a prank.
Allstate contends that, because plaintiff pleaded guilty to attempted assault in the second degree (Penal Law § 110.00, 120.05 Penal [4]), his conduct was not accidental and thus does not constitute an occurrence within the meaning of the policy. We disagree. Neither reckless assault in the second degree, the crime that was charged, nor the attempt to commit that crime, the crime to which plaintiff pleaded guilty, includes as an element the intent to cause physical injury ( see, Penal Law § 110.00, 120.05 Penal [4]). In any event, the record fails to support Allstate's contention that plaintiff intended to injure Eggert ( see, Allegany Co-op Ins. Co. v. Kohorst, 254 A.D.2d 744).
We also reject the contention that: Allstate properly disclaimed coverage. Allstate failed to establish as a matter of law that plaintiff reasonably expected Eggert to sustain burn injuries as a result of plaintiff's conduct ( see, Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 45-46; Green v. Allstate Ins. Co., 177 A.D.2d 871, 872). The record establishes that plaintiff and Eggert were long-time friends; that plaintiff and others had engaged in horseplay before the incident; that, in setting Eggert's jeans on fire, plaintiff continued to engage in horseplay; that, believing the flames had been extinguished and that Eggert was not in danger, plaintiff left the area and rejoined his friends; and that, when Eggert screamed, plaintiff immediately rushed to his aid. That evidence presents a factual issue whether plaintiff reasonably expected Eggert to sustain burn injuries.
The court did not abuse its discretion in refusing to dismiss the action on the ground that plaintiff failed to submit a proposed order to the court within 60 days of the filing of the court's decision (see, 22 NYCRR 202.48 [a], [b]). Allstate failed to establish that the decision had been filed ( see, West v. Schmieder, 217 A.D.2d 579, 580).