        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1305
CA 15-00978
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


MARK A. LEO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.


BRINDISI, MURAD, BRINDISI & PEARLMAN, LLP, UTICA (ANTHONY A. MURAD OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

BOEGGEMAN, GEORGE & CORDE, P.C., ALBANY (PAUL A. HURLEY OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Oneida County (Bernadette T. Clark, J.), entered
November 4, 2014 in a declaratory judgment action. The judgment
granted the motion of defendant for summary judgment, dismissed the
complaint and denied the cross motion of plaintiff for partial summary
judgment.

     It is hereby ORDERED that the judgment so appealed from is
modified on the law by reinstating the complaint to the extent that it
seeks a declaration and granting judgment in favor of defendant as
follows:

          It is ADJUDGED and DECLARED that plaintiff is not
     entitled to indemnification from defendant with respect to
     the underlying action,

and as modified the judgment is affirmed without costs.

     Memorandum: We conclude, for reasons stated in the decision at
Supreme Court, that the court properly granted defendant’s motion for
summary judgment and properly denied plaintiff’s cross motion for
partial summary judgment. The court erred, however, in dismissing the
complaint and in failing to declare the rights of the parties in this
declaratory judgment action (see Maurizzio v Lumbermens Mut. Cas. Co.,
73 NY2d 951, 954; Ward v County of Allegany, 34 AD3d 1288, 1289). We
therefore modify the judgment accordingly.

     All concur except WHALEN, J., who dissents and votes to modify
in accordance with the following memorandum: Plaintiff commenced this
action seeking, inter alia, a declaration that defendant must
indemnify him in an underlying personal injury action, Sciortino v
                                 -2-                          1305
                                                         CA 15-00978

Leo. The complaint in the underlying action seeks damages for the
wrongful death and conscious pain and suffering of Anthony J.
Sciortino (decedent), who was killed in a violent altercation with
plaintiff. The administrator of decedent’s estate alleges that the
injuries to decedent were caused by plaintiff’s intentional, reckless,
or negligent conduct. Plaintiff was charged with manslaughter in the
second degree (Penal Law § 125.15 [1]) as a result of the incident
and, following the commencement of the wrongful death action, he was
acquitted by a jury.

     At the time of the incident, plaintiff was insured under a
homeowner’s policy issued by defendant. Although defendant provided a
defense to plaintiff in the Sciortino action, it disclaimed any
obligation to indemnify him on the grounds that the incident was not a
covered occurrence, defined in the policy as an “accident,” and that
the policy excluded coverage for bodily injury that was “expected or
intended” by plaintiff.

     Supreme Court granted defendant’s motion for summary judgment
dismissing the complaint and denied plaintiff’s cross motion for
partial summary judgment on the issue of defendant’s obligation to
indemnify plaintiff in the Sciortino action. I agree with the
majority that the court properly denied plaintiff’s cross motion. In
my view, however, the court erred in granting defendant’s motion.
Whether an occurrence constitutes an accident is generally for the
trier of fact to determine (see Lachter v Insurance Co. of N. Am., 145
AD2d 540, 541), and I cannot agree with the majority that, based upon
the parties’ submissions, defendant’s obligation to indemnify
plaintiff may be resolved as a matter of law (see generally Prashker v
United States Guar. Co., 1 NY2d 584, 590).

     “In deciding whether a loss is the result of an accident, it must
be determined, from the point of view of the insured, whether the loss
was unexpected, unusual and unforeseen” (Allegany Co-op Ins. Co. v
Kohorst, 254 AD2d 744, 744). It is well established, moreover, that
accidental results may flow from intentional causes (see Slayko v
Security Mut. Ins. Co., 98 NY2d 289, 293; Kemper Independence Ins. Co.
v Ellis, 128 AD3d 1529, 1530). In determining whether the result
herein, i.e., decedent’s death, was intended or accidental, the
“ ‘transaction as a whole’ test should be applied” (McGroarty v Great
Am. Ins. Co., 36 NY2d 358, 364, rearg denied 36 NY2d 874). Considered
from that perspective, “regardless of the initial intent or lack
thereof as it relates to causation, or the period of time involved, if
the resulting damage could be viewed as unintended by the
[factfinder,] the total situation could be found to constitute an
accident” (id. at 364-365).

     Viewing the evidence in the light most favorable to plaintiff,
and granting plaintiff every favorable inference (see Pearson v Dix
McBride, LLC, 63 AD3d 895, 895; Hartford Ins. Co. v General Acc. Group
Ins. Co., 177 AD2d 1046, 1047), I conclude that there are triable
issues of fact whether decedent’s death could be viewed as unintended.
Here, it is undisputed that plaintiff caused decedent’s death by
striking him in the head with a baseball bat. Plaintiff presented
                                 -3-                          1305
                                                         CA 15-00978

evidence, however, that for a number of years his relationship with
decedent had been acrimonious and at times volatile. Plaintiff also
presented evidence that, on the day of the incident, decedent advanced
toward him menacingly with a metal pipe, swung the pipe at him and
grazed the top of plaintiff’s head. Plaintiff further testified that
he did not intend to injure decedent, but rather swung the baseball
bat in reaction to the aggressive acts of decedent.

     Viewing the transaction as a whole, I conclude that there is a
triable issue of fact whether, despite the evidence of intentional
behavior on plaintiff’s part, decedent’s death was an accident. As
the Court of Appeals stated in Automobile Ins. Co. of Hartford v Cook
(7 NY3d 131), where a policyholder sought insurance coverage under a
homeowner’s policy for fatally shooting an aggressor in the abdomen in
self-defense, the term “accident” applies “not only to an
unintentional or unexpected event which, if it occurs, will
foreseeably bring on death, but equally to an intentional or expected
event which unintentionally or unexpectedly had that result” (id. at
138 [internal quotation marks omitted]).

     With respect to the exclusion, I conclude that there are triable
issues of fact whether plaintiff “expected or intended” the harm to
decedent (see id.; Merchants Ins. of N.H., Inc. v Weaver, 31 AD3d 945,
946). Contrary to defendant’s contention, this case does not fall
within the “narrow class of cases in which the intentional act
exclusion applies regardless of the insured’s subjective intent”
(Slayko, 98 NY2d at 293, citing Allstate Ins. Co. v Mugavero, 79 NY2d
153, 161). Thus, inasmuch as defendant failed to meet its burden of
establishing that it has no obligation to indemnify plaintiff, I would
modify the judgment by denying defendant’s motion.




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
