MARTIN v. SAFECO INSURANCE COMPANY OF AMERICA (2005)

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered August 24, 2004, awarding plaintiff assignee damages against defendant insurer, and bringing up for review an order, same court and Justice, entered on or about March 10, 2004, which, upon the parties' respective motions for summary judgment, declared that defendant is obligated to satisfy the judgment entered against its insured (Schneider) and in favor of plaintiff in an underlying action for personal injuries, unanimously affirmed, without costs.

 Schneider's written notice of claim advised defendant, inter alia, that he had been involved in an “altercation” with plaintiff and arrested;  plaintiff's complaint against Schneider alleged, inter alia, that he sustained personal injury as a result of Schneider's negligence;  defendant disclaimed coverage;  and the jury in plaintiff's action against Schneider found that plaintiff's injuries were caused by Schneider's negligence.   The motion court correctly held, inter alia, that the jury's finding of negligence collaterally estops defendant from presently arguing that Schneider's acts either were not a covered “occurrence” within the policy or fell entirely within policy exclusions for intentional torts and criminal acts.   At least one possibility of coverage was reasonably suggested in the underlying action (see Continental Cas. Co. v. Rapid Am. Corp., 80 N.Y.2d 640, 648, 593 N.Y.S.2d 966, 609 N.E.2d 506 [1993] ), namely, that Schneider acted in self-defense.   Given such a possibility, and absent a court order otherwise, defendant was under a duty to defend Schneider, and its refusal to do so collaterally estops it from attacking the judgment in plaintiff's favor or raising defenses with respect to its merits (see Ramos v. National Cas. Co., 227 A.D.2d 250, 642 N.Y.S.2d 290 [1996] ).   We have considered defendant's other arguments and find them unavailing.