

United Servs. Auto. Assn. v Iannuzzi (2016 NY Slip Op 03265)





United Servs. Auto. Assn. v Iannuzzi


2016 NY Slip Op 03265


Decided on April 28, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 28, 2016

Tom, J.P., Mazzarelli, Friedman, Richter, Kahn, JJ.


981 150319/14

[*1]United Services Automobile Association, Plaintiff-Appellant-Respondent,
vRobert N. Iannuzzi, Defendant-Respondent-Appellant.


Marshall Dennehey Warner Coleman & Goggin, New York (Jeffrey J. Imeri of counsel), for appellant-respondent.
Law Offices of Eric Dinnocenzo, New York (Eric Dinnocenzo of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 30, 2015, which denied plaintiff's motion for summary judgment declaring that it has no obligation to defend or indemnify defendant in the underlying personal injury action, and granted defendant's motion for summary judgment to the extent of declaring that plaintiff is obligated to defend defendant in the underlying action, unanimously reversed, on the law, without costs, plaintiff's motion granted, and defendant's motion denied. The Clerk is directed to enter judgment declaring that plaintiff has no obligation to defend or indemnify defendant in the underlying action.
Defendant pleaded guilty to third-degree assault (Penal Code § 120.00[1] ["With intent to cause physical injury to another person, he causes such injury]"). Thus, he is collaterally estopped to litigate in this declaratory judgment action the issue of his intent to inflict bodily injury on the person he injured (the claimant) (see Hughes v Farrey, 30 AD3d 244, 247 [1st Dept 2006], lv dismissed 8 NY3d 841 [2007]).
Although, as defendant argues, "accidental results may flow from intentional causes" (Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293 [2002] [internal quotation marks omitted]), defendant knew that when he hit the claimant, after flipping him over his shoulder onto the pavement, injuries could result (see State Farm Fire & Cas. Co. v Whiting, 53 AD3d 1033, 1034 [4th Dept 2008], appeal withdrawn 12 NY3d 780 [2009]). The harm to the claimant was inherent in the nature of the act, although the injuries may have been more extensive than defendant intended (see Empire Ins. Co. v Miguel, 114 AD3d 539 [1st Dept 2014], lv denied 23 NY3d 908 [2014]; cf. Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131 [2006].
Since the acts at issue were outside the scope of coverage, timely disclaimer pursuant to Insurance Law § 3420(d) was unnecessary (see Hough v USAA Cas. Ins. Co., 93 AD3d 405 [1st
Dept 2012]).
We have considered defendant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 28, 2016
CLERK


