72 A.D.2d 591 | N.Y. App. Div. | 1979
In an action to declare the rights of the parties under an insurance policy, the cross appeals are from a judgment of the Supreme Court, Nassau County, entered May 26, 1978, which, inter alia, declared that (1) defendant Shuler’s notice of claim was timely, (2) the occurrence in which defendant Shuler shot defendant Thomas was an accident within the coverage of the subject insurance policy with respect to the corporate insured, Gwen Way Rest. Corp., and (3) the insurer would be liable to pay, inter alia, any punitive damages, within the limits of the policy, owing from the corporate insured Gwen Way Rest. Corp., to defendant Thomas in the underlying action. Defendant Shuler has apparently abandoned his cross appeal. On the appeal by plaintiff, judgment modified, on the law, by deleting therefrom paragraphs "4” and "6” and substituting therefor the following declarations: "4. That with respect to the defendant Gwen Way Rest. Corp., the occurrence at the Gwen Way bar described in paragraph 'Eleventh’ of the Thomas complaint, plaintiff’s exhibit 3, in evidence, constitutes, if so proven, an intentional tort beyond the coverage of the insurance policy.” "6. That the plaintiff is required to pay, within the monetary limits of the insurance policy, any judgment recovered against defendant Gwen Way Rest. Corp. on the third cause of action alleged in the Thomas complaint.” As so modified, judgment affirmed insofar as appealed from by plaintiff, without costs or disbursements. On January 30, 1972, defendant Shuler, an officer, director and shareholder of the insured Gwen Way Rest. Corp. (Gwen Way) shot and wounded defendant Joyce Thomas. Approximately six months later, Ms. Thomas brought suit against defendants Shuler and Gwen Way, seeking damages for intentional tort, punitive damages, and damages for the defendants’ negligence and recklessness. Two days after receipt of the summons and complaint, they were forwarded to plaintiff insurer, Aetna Casualty & Surety Company (Aetna), which subsequently commenced the instant action to declare the rights of the parties under the subject insurance policy. It is undisputed that