Essex Insurance v. ZwickEssex Insurance v. Zwick
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Plaintiff commenced this action seeking judgment declaring that it has no duty to defend or indemnify defendants T-Birds Nightclub and Restaurant, Inc. (T-Birds), AGA Development Corp. and Kenneth Holdsworth in a personal injury action commenced against them by defendant Andrew Zwick. Supreme Court properly denied plaintiff‘s motion seeking summary judgment. The commercial general liability policy issued to T-Birds by plaintiff provides coverage for bodily injury caused by an “occurrence,” which is defined as “an accident.” “[F]rom the point of view of [T-Birds,] the insured” (Miller v Continental Ins. Co., 40 NY2d 675, 677 [1976]), the incident resulting in injury to Zwick “was unexpected, unusual or unforeseen” (American Ref-Fuel Co. of Hempstead v Employers Ins. Co. of Wausau, 265 AD2d 49, 53 [2000]; see Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [2000]), and thus falls within the policy‘s coverage for claims of bodily injury arising out of an accidental occurrence (see Penn-America Group v Zoobar, Inc., 305 AD2d 1116, 1117 [2003], lv denied 100 NY2d 511 [2003]; see also Liberty Mut. Ins. Co. v Ho, 289 AD2d 1051 [2001]). Further, plaintiff failed to establish as a matter of law that the assault and/or battery exclusion applies to the conduct of Holdsworth, a bouncer employed by T-Birds, in restraining
Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Green, JJ.