                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 12, 2017                   523086
________________________________

JOHN GUZY,
                    Plaintiff,
     v                                      MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE
   INSURANCE COMPANY,
                    Appellant.
________________________________


Calendar Date:   November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                             __________


      Gozigian, Washburn & Clinton, Cooperstown (Edward W. Garo
Gozigian of counsel), for appellant.

                             __________


Aarons, J.

      Appeal from an order of the Supreme Court (Burns, J.),
entered July 24, 2015 in Ostego County, which granted plaintiff's
motion for summary judgment.

      In February 2015, Derek Prindle commenced a personal injury
action against plaintiff. Plaintiff tendered the defense of
Prindle's action to defendant, which had issued homeowners and
umbrella insurance policies to plaintiff. After defendant
disclaimed coverage, plaintiff commenced this action seeking a
judgment declaring that defendant had a duty to defend him in the
action brought by Prindle. Following joinder of issue, plaintiff
moved for summary judgment. Supreme Court granted plaintiff's
motion, prompting this appeal by defendant. We affirm.

      An insurance company's duty to defend "is exceedingly broad
and an insurer will be called upon to provide a defense whenever
                              -2-                523086

the allegations of the complaint suggest a reasonable possibility
of coverage" (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131,
137 [2006] [internal quotation marks, ellipsis and citation
omitted]). If the complaint's allegations bring the claim "even
potentially within the embrace of the policy, the insurer must
defend its insured no matter how groundless, false or baseless
the suit may be" (Village of Brewster v Virginia Sur. Co., Inc.,
70 AD3d 1239, 1241 [2010] [internal quotation marks and citation
omitted]; see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708,
714 [2007]).

      Under the terms of the homeowners insurance policy,
defendant must provide plaintiff with a defense in a legal action
involving bodily injury caused by an occurrence, which was
defined as an accident. The umbrella policy also contained an
exclusion that barred coverage for "expected or intended"
conduct. Defendant contends that plaintiff's act of shooting
Prindle was intentional, thereby bringing it outside the ambit of
the homeowners insurance policy or within the umbrella policy's
exclusion. We disagree.

      Here, Prindle's complaint alleged that plaintiff
"assault[ed] [Prindle] . . . by shooting [Prindle] in the
abdomen" and that "as a result of the assault," Prindle sustained
personal injuries. While Prindle's complaint also alleged that
plaintiff was arrested and criminally charged with assault, there
was no further specification as to this criminal charge raised
against plaintiff (compare United Servs. Auto. Assn. v Iannuzzi,
138 AD3d 638, 639 [2016], lv denied 28 NY3d 902 [2016]).
Inasmuch as an assault may derive from an individual's
recklessness or criminal negligence (see Penal Law § 120.00 [2],
[3]), a reasonable possibility exists that plaintiff's actions
were not intentional, as defendant argues (see Trafalski v
Allstate Ins. Co., 258 AD2d 888, 888 [1999]; cf. New York Cent.
Mut. Ins. Co. v Wood, 36 AD3d 1048, 1049-1050 [2007]).
Furthermore, while the allegation in Prindle's complaint
describing plaintiff's actions as "intentional and criminal" is
relevant in determining whether defendant's duty to defend
exists, such conclusory allegation drafted by a third party is
not the focal point (see Fitzpatrick v American Honda Motor Co.,
Inc., 78 NY2d 61, 68 [1991]).
                              -3-                  523086

      Because the shooting can be reasonably interpreted as
having stemmed from plaintiff's unintentional conduct, we
conclude that defendant's duty to defend was triggered under the
insurance policy (see Automobile Ins. Co. of Hartford v Cook, 7
NY3d at 137-138; Deetjen v Nationwide Mut. Fire Ins. Co., 302
AD2d 350, 352 [2003]; Merrimack Mut. Fire Ins. Co. v Carpenter,
224 AD2d 894, 895 [1996], lv dismissed 88 NY2d 1016 [1996]; cf.
Miller v Continental Ins. Co., 40 NY2d 675, 678 [1976]). For
similar reasons, we find that defendant failed to establish that
the allegations in Prindle's complaint in toto were subject to no
other interpretation than that plaintiff "expected or intended"
the resulting harm (see Automobile Ins. Co. of Hartford v Cook, 7
NY3d at 138; Clayburn v Nationwide Mut. Fire Ins. Co., 58 AD3d
990, 991 [2009]; Merchants Ins. of N.H., Inc. v Weaver, 31 AD3d
945, 946 [2006]; Michigan Millers Mut. Ins. Co. v Christopher, 66
AD2d 148, 152 [1979]).

     Peters, P.J., Garry, Devine and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
