Cepeda v. Varveris
| Decision Date | 23 December 1996 |
| Citation | 234 A.D.2d 497,651 N.Y.S.2d 185 |
| Parties | Jonathan CEPEDA, etc., et al., Plaintiffs-Respondents, v. Alexander J. VARVERIS, Defendant Third-Party Plaintiff-Respondent, et al., Defendant, Liberty Mutual Insurance Group, Third-Party Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Fogarty & Fogarty, P.C., Mineola, (Edward Fogarty, Jr., of counsel), for third-party defendant-appellant.
Burt H. Stutchin, Hempstead, for defendant third-party plaintiff-respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers, (Brian J. Farrell, of counsel), for plaintiffs-respondents.
Before MILLER, J.P., and SULLIVAN, ALTMAN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the third-party defendant, Liberty Mutual Insurance Group, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated November 13, 1995, as granted that branch of the cross motion of the defendant third-party plaintiff, Alexander J. Varveris, which was for a declaration that the third-party defendant is obligated to defend him in the main action.
ORDERED that the order is modified, by adding thereto a provision declaring that Liberty Mutual has a duty to defend the defendant third-party plaintiff in the main action; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
In the main negligence action, the plaintiffs alleged that Jonathan Cepeda suffered injuries from ingesting lead-based paint in an apartment that his family rented from the defendant-landlord Alexander J. Varveris. The injury is alleged to have occurred over a period commencing when the injured plaintiff moved into the apartment in July of 1989 until the date of the complaint in July of 1993. The appellant herein, Liberty Mutual Insurance Group (hereinafter Liberty Mutual), provided insurance for the subject premises from August 26, 1990, to October 31, 1991. Varveris commenced a third-party action seeking, inter alia, a declaration that Liberty Mutual is obligated to defend and/or indemnify him in the main action. Liberty Mutual, however, argued that the injury to Jonathan occurred after the policy it had issued to Varveris expired, and that, in any event, coverage was vitiated by a pollution exclusion in its policy.
It is well settled that the duty to defend is broader than the duty to indemnify (see, Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 486 N.Y.S.2d 873, 476 N.E.2d 272). "The duty to defend arises whenever the allegations in a complaint against the insured fall within the scope of risks undertaken by the insurer, regardless of how false or groundless those allegations might be" ( Seaboard Sur. Co. v. Gillette Co., supra, at 310, 486 N.Y.S.2d 873, 476 N.E.2d 272), or even if "facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered" (Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 63, ...
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