ESSEX INSURANCE COMPANY v. ZWICK AGA (2006)

 Plaintiff commenced this action seeking judgment declaring that it has no duty to defend or indemnify defendants T-Birds Nightclub and Restaurant, Inc. (T-Birds), AGA Development Corp. and Kenneth Holdsworth in a personal injury action commenced against them by defendant Andrew Zwick.   Supreme Court properly denied plaintiff's motion seeking summary judgment.   The commercial general liability policy issued to T-Birds by plaintiff provides coverage for bodily injury caused by an “occurrence,” which is defined as “an accident.”  “[F]rom the point of view of [T-Birds,] the insured” (Miller v. Continental Ins. Co., 40 N.Y.2d 675, 677, 389 N.Y.S.2d 565, 358 N.E.2d 258), the incident resulting in injury to Zwick “was unexpected, unusual or unforeseen” (American Ref-Fuel Co. of Hempstead v. Employers Ins. Co. of Wausau, 265 A.D.2d 49, 53, 705 N.Y.S.2d 67;  see Agoado Realty Corp. v. United Intl. Ins. Co., 95 N.Y.2d 141, 145, 711 N.Y.S.2d 141, 733 N.E.2d 213), and thus falls within the policy's coverage for claims of bodily injury arising out of an accidental occurrence (see Penn-America Group v. Zoobar, Inc., 305 A.D.2d 1116, 1117, 759 N.Y.S.2d 825, lv. denied 100 N.Y.2d 511, 766 N.Y.S.2d 164, 798 N.E.2d 348;  see also Liberty Mut. Ins. Co. v. Ho, 289 A.D.2d 1051, 735 N.Y.S.2d 286).   Further, plaintiff failed to establish as a matter of law that the assault and/or battery exclusion applies to the conduct of Holdsworth, a bouncer employed by T-Birds, in restraining Zwick (see Anastasis v. American Safety Indem. Co., 12 A.D.3d 628, 630, 786 N.Y.S.2d 88;  Essex Ins. Co. v. T-Birds Nightclub & Rest., 229 A.D.2d 919, 920, 645 N.Y.S.2d 218).   Even assuming, arguendo, that the assault and/or battery exclusion applies, however, we conclude that plaintiff failed to establish as a matter of law that its delay in providing notice of disclaimer of coverage was reasonable (see generally Republic Franklin Ins. Co. v. Pistilli, 16 A.D.3d 477, 479, 791 N.Y.S.2d 639;  Matter of Eagle Ins. Co. [Morel], 202 A.D.2d 1064, 609 N.Y.S.2d 128).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: