PHYSICIANS RECIPROCAL INSURERS v. Theresa Turilli, et al., appellants. (1999)

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Louis A. Blank, M.D., in an underlying action entitled Turilli v. Blank, pending in the Supreme Court, Nassau County, under Index No. 37224/95, the defendants Theresa Turilli and Eltone Turilli appeal from a judgment of the Supreme Court, Nassau County (Lockman, J.), dated January 6, 1998, which, upon the granting of the plaintiff's motion for summary judgment, declared that the plaintiff is not obligated to defend or indemnify the defendant Louis A. Blank, M.D., in the underlying action.

ORDERED that the judgment is affirmed, with costs.

 The Supreme Court properly declared that the plaintiff, Physicians' Reciprocal Insurers (hereinafter PRI), has no duty to defend or indemnify the defendant Louis A. Blank, M.D., in the underlying action.   It is undisputed that the injuries alleged in the underlying action grew out of sexual acts between the defendant Theresa Turilli and the defendant Dr. Blank.   Since the PRI policy issued to Dr. Blank provides coverage for claims arising from the rendering or failure to render professional services, but clearly excludes coverage for claims which result from sexual intimacy, sexual molestation, sexual exploitation, or sexual assault, as well as willful, fraudulent, or malicious civil and criminal acts, there is no basis to compel PRI to defend or indemnify Dr. Blank (see, Technicon Elecs. Corp. v. Am. Home Assur. Co., 74 N.Y.2d 66, 73, 544 N.Y.S.2d 531, 542 N.E.2d 1048;  Sanabria v. Am. Home Assur. Co., 68 N.Y.2d 866, 868, 508 N.Y.S.2d 416, 501 N.E.2d 24;  Tasso v. Aetna Ins. Co., 247 A.D.2d 376, 668 N.Y.S.2d 644).

 The Turillis' contention that PRI failed to properly and promptly disclaim is without merit, since its January 19, 1996, letter “clearly constituted a timely disclaimer of coverage * * * based on an exclusion in the policy, with respect to the theory of liability asserted in the underlying * * * complaint” (Waxman v. Providence Wash. Ins. Co., 207 A.D.2d 882, 884–885, 616 N.Y.S.2d 771).

The Turillis' remaining contention is without merit.

MEMORANDUM BY THE COURT.