ROYAL INDEMNITY COMPANY v. BELCER III IV (1997)

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

ROYAL INDEMNITY COMPANY, Appellant, v. Anthony BELCER, III, Individually and as Parent and Natural Guardian of Anthony Belcer, IV, an Infant, and as Parent and Natural Guardian for Edward Belcer, an Infant, Josephine Belcer, Respondents, et al., Defendants.

Decided: September 30, 1997

Before GREEN, J.P., and PINE, WISNER, BALIO and FALLON, JJ.

Law Offices of Charles G. Dipasquale by Lori Siracuse, Buffalo, for Plaintiff-Appellant. Tronolone & Surgalla, P.C. by John Surgalla, Buffalo, for Defendants-Respondents Belcer. Block & Colucci, P.C., Buffalo, for Defendants Scrivner of New York, Inc. and South Ogden Super Duper, Inc.

Supreme Court properly denied the motion of plaintiff for summary judgment seeking a declaration that it is not obligated to defend or indemnify its insured, Mark Schukraft, in a personal injury action arising from an altercation on November 9, 1993. Plaintiff declined coverage based on Schukraft's conviction after trial of intentional assault in the third degree in connection with the incident. Insurance Law § 3420(d) requires an insurer disclaiming coverage to give written notice as soon as reasonably possible, and there is an issue of fact whether the explanation by plaintiff for its delay in this case was reasonable. We agree with plaintiff, however, that defendants are estopped from relitigating the issue of Schukraft's intent (see, D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 666-668, 563 N.Y.S.2d 24, 564 N.E.2d 634). Schukraft was charged and convicted in Buffalo City Court with intentional assault in the third degree (Penal Law § 120.00[1] ).

Order unanimously affirmed with costs.

MEMORANDUM:

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