97 A.D.2d 396 | N.Y. App. Div. | 1983
In a declaratory judgment action, defendant Merchants Mutual Insurance Company appeals from a judgment of the Supreme Court, Nassau County (Wager, J.), entered March 15, 1983, which upon defendant Kathleen Minerva’s motion, granted partial summary judgment to her declaring that defendant Merchants Mutual Insurance Company is obligated to defend plaintiffs in a tort action brought against plaintiffs by defendant Minerva, and denied as moot defendant Merchants Mutual’s cross motion for summary judgment. Judgment reversed, on the law, without costs or disbursements, defendant Minerva’s motion denied, defendant Merchants Mutual’s cross motion granted, and it is hereby declared that defendant Merchants Mutual is under no obligation to defend or indemnify plaintiffs in the action brought against plaintiffs by defendant Kathleen Minerva. On July 26, 1982 defendant Kathleen Minerva brought suit alleging that plaintiff Steven Lander, while in the course of his duties as an employee and officer of plaintiff Hicksville Motors, ignited a fireworks-type device on business premises which entered adjoining premises and injured defendant Minerva. Plaintiffs thereupon brought this action for a judgment declaring that defendant Merchants Mutual Insurance Company was obligated under a policy of insurance issued to plaintiffs to defend and indemnify them in the underlying negligence suit. The obligation to defend arises upon the mere allegation of facts and circumstances which might — if proved — fall within the risk covered by the policy (Sturges Mfg. Co. v Utica Mut. Ins. Co., 37 NY2d 69). The viability of such claims is
