220-35 86th St. Realty, LLC v. Tower Ins. Co. of N.Y.

• Decision Date: 14 May 2013
• Parties: 220–35 86TH STREET REALTY, LLC, Plaintiff–Appellant, v. TOWER INSURANCE COMPANY OF NEW YORK, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 478
965 N.Y.S.2d 412
2013 N.Y. Slip Op. 03413

220–35 86TH STREET REALTY, LLC, Plaintiff–Appellant,
v.
TOWER INSURANCE COMPANY OF NEW YORK, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

May 14, 2013.

[965 N.Y.S.2d 413]

Razis & Ross, P.C., Astoria (George J. Razis of counsel), for appellant.

Mound Cotton Wollan & Greengrass, New York (Tania A. Gondiosa of counsel), for respondent.

ANDRIAS, J.P., SAXE, FREEDMAN, ROMÁN, JJ.

[106 A.D.3d 479]Order, Supreme Court, New York County (Debra A. James, J.), entered April 17, 2012, which granted defendant's motion to dismiss the complaint to the extent of staying the action pending the determination of the criminal case against the alleged arsonist, and denied plaintiff's motion to dismiss the second, third, fourth, fifth and sixth affirmative defenses, unanimously modified, on the law, to grant plaintiff's motion as to the second, third and sixth affirmative defenses, and to vacate the stay, and otherwise affirmed, without costs.

Plaintiff building owner seeks a judgment declaring that defendant has an obligation to defend and indemnify it in connection with a building fire that, inter alia, left several people dead or injured. Following a police and fire department investigation, an individual was arrested and indicted on charges of, inter alia, arson in the fourth degree and assault in the first and second degrees. Defendant disclaimed coverage under the liability insurance policy it issued to plaintiff on the ground that plaintiff's claims apparently involved bodily injury arising from an assault or battery committed by the accused

[965 N.Y.S.2d 414]

arsonist and that the insurance does not apply to bodily injury arising from assault and/or battery or any act or omission in connection with any assault and/or battery. The motion court stayed this action pending determination of the criminal action on the ground that that determination is necessary to a determination of the applicability of the assault and battery exclusion to plaintiff's claims.

Civil assault and battery are intentional acts, and the assault offenses with which the accused arsonist is charged do not include the intent to harm a specific individual ( comparePJI 2d 3:2 [assault]; 3:3 [battery], withPenal Law 120.10[4] [assault in the first degree]; 120.05[6] [assault in the second degree] ). Thus, assuming that the insurance policy exclusion is triggered by civil, rather than criminal, assault or...