STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, appellant-respondent, v. John Robert LANGAN, etc., respondent-appellant.
In an action, inter alia, for a judgment declaring the rights of the parties under an insurance contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered January 30, 2004, as denied its motion for summary judgment dismissing the defendant's counterclaims and for a declaration that it was not obligated to provide insurance coverage for the injuries sustained by Neil Conrad Spicehandler as the result of a hit-and-run incident on February 12, 2002, and the defendant cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion, inter alia, for summary judgment declaring that the plaintiff was obligated to provide insurance coverage for the injuries sustained by Neil Conrad Spicehandler as the result of a hit-and-run incident on February 12, 2002, and for summary judgment on his third counterclaim.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's second counterclaim and those portions of the defendant's first and third counterclaims which seek to recover damages for emotional distress and which request punitive damages and substituting therefor a provision granting those branches of the plaintiff's motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.
On February 12, 2002, Neil Conrad Spicehandler was struck and injured by a motor vehicle allegedly driven by Ronald Popadich. Spicehandler subsequently died as a result of his injuries. The administrator of Spicehandler's estate, the defendant, John Robert Langan, sought to recover, inter alia, uninsured motorist benefits pursuant to an automobile liability policy issued by the plaintiff, State Farm Mutual Automobile Insurance Company (hereinafter State Farm). After an investigation, State Farm disclaimed coverage under its policy on the ground that Spicehandler's injuries were the result of intentional conduct and not the result of an accident as required by the policy. Thereafter, State Farm commenced the instant action, inter alia, for a judgment declaring that it was not obligated to provide the coverage sought by the defendant.
Contrary to the defendant's contention, if Spicehandler's injuries and death were the result of an intentional assault or an intentional homicide, then they were not the result of an accident, and the incident is not covered under the applicable policy (see Matter of Progressive Northwestern Ins. Co. v. Van Dina, 282 A.D.2d 680, 724 N.Y.S.2d 431; Matter of Aetna Cas. & Sur. Co. v. Perry, 220 A.D.2d 497, 498, 632 N.Y.S.2d 31; McCarthy v. MVAIC, 16 A.D.2d 35, 224 N.Y.S.2d 909, affd. 12 N.Y.2d 922, 238 N.Y.S.2d 101, 188 N.E.2d 405). However, in support of its motion for summary judgment, State Farm failed to demonstrate, prima facie, that Popadich intentionally struck Spicehandler. State Farm relied upon mere hearsay and failed to submit admissible proof of the incident's intentional nature (see P & N Tiffany Props. v. Maron, 16 A.D.3d 395, 790 N.Y.S.2d 396; Young v. Fleary, 226 A.D.2d 454, 455, 640 N.Y.S.2d 593; Borough Hall-Oxford Tobacco Corp. v. Central Office Alarm Co., 35 A.D.2d 523, 313 N.Y.S.2d 431; Greenberg v. Prudential Ins. Co., 266 App.Div. 685, 40 N.Y.S.2d 494; Welz v. Commercial Travelers Mut. Acc. Assn., 266 App.Div. 668, 40 N.Y.S.2d 128). Accordingly, the Supreme Court properly denied that branch of State Farm's motion which was for summary judgment declaring that the incident was not covered under the subject policy (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Similarly, the Supreme Court properly denied that branch of the defendant's cross motion which was for summary judgment declaring that the plaintiff was obligated to provide insurance coverage for the injuries sustained by Spicehandler as the result of a hit-and-run incident on February 12, 2002, because it was not supported by admissible evidence (see Winegrad v. New York Univ. Med. Ctr., supra; Zuckerman v. City of New York, supra ). The defendant relied on a police report to establish the accidental nature of the incident, but there is no evidence that the reporting officer witnessed the incident or that the eyewitness referred to in the report had a business duty to report the facts to the officer (see Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 396, 753 N.Y.S.2d 470; Bendik v. Dybowski, 227 A.D.2d 228, 642 N.Y.S.2d 284). Thus, the portion of the police report relied upon by the defendant constituted inadmissible hearsay (see Almestica v. Colon, 304 A.D.2d 508, 757 N.Y.S.2d 336; Holliday v. Hudson Armored Car & Courier Serv., supra; Coughlin v. Bartnick, 293 A.D.2d 509, 511, 740 N.Y.S.2d 394; Dennis v. Capital Dist. Transp. Auth., 274 A.D.2d 802, 803, 711 N.Y.S.2d 836; Urbano v. Plaza Materials Corp., 262 A.D.2d 307, 308, 692 N.Y.S.2d 86; Gomes v. Courtesy Bus Co., 251 A.D.2d 625, 626, 676 N.Y.S.2d 196; Bendik v. Dybowski, supra ).
However, the Supreme Court erred in denying that branch of State Farm's motion which was for summary judgment dismissing the defendant's second counterclaim. The first and second counterclaims both allege that State Farm breached its insurance contract by wrongfully denying coverage. Since the second counterclaim is duplicative of the first counterclaim, it should have been dismissed (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315-320, 639 N.Y.S.2d 283, 662 N.E.2d 763; Hassett v. New York Cent. Mut. Fire Ins. Co., 302 A.D.2d 886, 887, 753 N.Y.S.2d 788; Paull v. First UNUM Life Ins. Co., 295 A.D.2d 982, 984, 744 N.Y.S.2d 95). In addition, the defendant's counterclaims are insufficient to warrant punitive damages and damages for emotional distress (see Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 634 N.E.2d 940; Hess v. Nationwide Mut. Ins. Co., 273 A.D.2d 689, 690-691, 709 N.Y.S.2d 701; Bread Chalet v. Royal Ins. Co., 224 A.D.2d 650, 651, 639 N.Y.S.2d 73; Warhoftig v. Allstate Ins. Co., 199 A.D.2d 258, 259, 604 N.Y.S.2d 245; Kanapaska v. Prudential Prop. & Cas. Ins. Co., 122 A.D.2d 935, 506 N.Y.S.2d 87; Korona v. State Wide Ins. Co., 122 A.D.2d 120, 121, 504 N.Y.S.2d 514; Fleming v. Allstate Ins. Co., 106 A.D.2d 426, 482 N.Y.S.2d 519, affd. 66 N.Y.2d 838, 498 N.Y.S.2d 365, 489 N.E.2d 252, cert. denied 475 U.S. 1096, 106 S.Ct. 1493, 89 L.Ed.2d 894). Accordingly, the defendant's demand for such damages should have been stricken from the remaining counterclaims.
The parties' remaining contentions are without merit.
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