SPHERE DRAKE INSURANCE COMPANY v. BLOCK 7206 CORPORATION (1997)

In an action for a judgment declaring that the plaintiff has no duty and obligation to defend or indemnify its insured, the defendant Block 7206 Corporation, d/b/a Hipps, in an action pending in the Supreme Court, Richmond County entitled Rauscher v. Block 7206 Corp. (Index No. 12526/93), the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (Mastro, J.), dated March 4, 1996, which denied its motion for summary judgment, and (2) so much of an order of the same court, dated June 25, 1996, as upon, in effect, granting reargument, adhered to its original determination, and granted the cross motion by the defendant Block 7206 Corporation for attorney's fees.

ORDERED that the appeal from the order dated March 4, 1996, is dismissed, as that order was superseded by the order dated June 25, 1996, made upon reargument;  and it is further,

ORDERED that the order dated June 25, 1996, is affirmed insofar as appealed from;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

 We agree with the plaintiff Sphere Drake Insurance Company (hereinafter Sphere Drake) that the underlying personal injury action brought against its insured, the defendant Block 7206 Corporation, d/b/a Hipps (hereinafter Block 7206), arising out of an alleged assault by employees of Block 7206, falls within the “Assault and Battery” exclusion of its general liability insurance policy (see, U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 623 N.Y.S.2d 834, 647 N.E.2d 1342).   Because “no cause of action would exist but for the [alleged] assault, the claim is based on assault and the exclusion applies” (Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347, 350, 645 N.Y.S.2d 433, 668 N.E.2d 404).   This is so despite the conclusory allegations of negligence (see, Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 162, 581 N.Y.S.2d 142, 589 N.E.2d 365;  Allstate Ins. Co. v. Boonyam, 192 A.D.2d 688, 597 N.Y.S.2d 131;  New York Cas. Ins. Co. v. Ward, 139 A.D.2d 922, 527 N.Y.S.2d 913;  cf., Essex Ins. Co. v. T-Birds Nightclub & Rest., 229 A.D.2d 919, 645 N.Y.S.2d 218 [4th Dept., 1996] ).

 However, because of its one-and-one-half-year delay in attempting to disclaim coverage, Sphere Drake is estopped from disclaiming its duty to defend the underlying action (see, Matter of Allstate Ins. Co. v. Ferrone, 232 A.D.2d 479, 648 N.Y.S.2d 936 [2d Dept., 1996];  Hanover Ins. Co. v. Suffolk Overhead Door Co., 207 A.D.2d 428, 430, 615 N.Y.S.2d 742).

 Finally, the court properly held that Block 7206, which was “cast in defensive posture by the legal steps [the] insurer [has taken] in an effort to free itself from its policy obligations” (Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21, 416 N.Y.S.2d 559, 389 N.E.2d 1080), is entitled to recover the reasonable costs and attorneys' fees incurred in the defense of that action (Mount Vernon Fire Ins. Co. v. Unjar, 177 A.D.2d 480, 482, 575 N.Y.S.2d 694;  see, U.S. Liab. Ins. Co. v. Staten Is. Hosp., 162 A.D.2d 445, 447, 556 N.Y.S.2d 153).

MEMORANDUM BY THE COURT.