State Farm Fire and Cas. Co. v. Irene S.

• Decision Date: 21 March 1988
• Citation: 526 N.Y.S.2d 171,138 A.D.2d 589
• Parties: STATE FARM FIRE AND CASUALTY COMPANY, Respondent, v. IRENE S. (Anonymous), Defendant, Kenneth A. Polokoff, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 171

526 N.Y.S.2d 171

138 A.D.2d 589

STATE FARM FIRE AND CASUALTY COMPANY, Respondent, v. IRENE S. (Anonymous), Defendant Kenneth A. Polokoff, Appellant.

Supreme Court, Appellate Division Second Department.

March 21, 1988.

Scoppetta & Seiff, New York City (Arthur N. Seiff and Eric A. Seiff, of counsel), for appellant.

Greenhill and Rubin, New York City (Lawrence N. Berwitz, of counsel), for respondent.

Before LAWRENCE, J.P., and EIBER, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring the duty of the plaintiff State Farm Fire and Casualty Company (hereinafter State Farm) to defend and indemnity the appellant in an action brought against him by the defendant Irene S., Kenneth A. Polokoff appeals from (1) an order of the Supreme Court, Kings County (Golden, J.), dated December 22, 1986, which denied his motion for summary judgment and which granted State Farm's cross motion for summary judgment, and (2) a judgment dated March 25, 1987, entered thereon.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the order dated December 22, 1986, is vacated, the cross motion is denied, the motion of appellant Polokoff for summary judgment is granted, it is declared that the plaintiff has a duty to defend the appellant in the underlying action, and the matter is remitted to the Supreme Court for a hearing with regard to the reasonable legal fees due the appellant for the costs incurred in defending the instant action; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

The underlying action in this case was commenced by the service of a complaint in which the plaintiff Irene S. alleged that the appellant had intentionally assaulted her as a result of which she sustained serious and severe injuries. The complaint also alleged that the appellant assaulted her with the intent to cause "severe and traumatic mental and emotional distress". An amended complaint asserted additional causes of action to the effect that the appellant assaulted and raped the plaintiff Irene S. with the intent of transmitting genital herpes.

At the time of these alleged assaults the appellant was covered by a homeowners' policy issued by State Farm which provided, inter alia, personal liability insurance for the insured for "damages because of bodily injury * * * to which this coverage applies". The personal liability insurance also obligated State Farm to "provide a defense at our expense by counsel of our choice". Specifically excluded from coverage was "bodily injury * * * which is expected or intended by the insured".

After State Farm received notice of the initial complaint in the action by Irene S. it disclaimed liability on the ground that her injuries were the result of the appellant's intentional acts and therefore were excluded from coverage under the policy.

On June 13, 1984, State Farm commenced this action for declaratory judgment seeking a judicial determination as to whether it was required to defend or indemnify the appellant in Irene S.'s action. For reasons not relevant here a default judgment was entered against the appellant which on appeal was vacated by this court ( see, State Farm Fire & Cas. Co. v. Shapiro, 118 A.D.2d 556, 499 N.Y.S.2d 170). In reversing we noted that the "appellant's [Polokoff's] claim that the damages sustained by [Irene S.] were unintended, if proved, would be within the policy coverage and, therefore, State Farm would be obligated to defend the underlying action against the appellant" ( State Farm Fire...