85 A.D.2d 712 | N.Y. App. Div. | 1981
In an action to declare the rights of the parties under an insurance contract, plaintiff appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), dated December 10, 1980, which (1) denied its motion for a summary judgment and (2) determined that defendant Chinoise Restaurant & Trading Corp. is entitled to be defended by plaintiff in the suit brought against it by the Volkmans. Order affirmed, with $50 costs and disbursements to defendant Chinoise. On September 4, 1979, Barry Volkman took his three sons, Michael, Philip and Kenneth, to have dinner at the Chinoise Restaurant in Hartsdale. Michael and Philip, aged 14 and 12 years respectively, were disabled and confined to wheelchairs. Volkman alleges that the manager of Chinoise, Danny Sheng, refused to accommodate them at the regular dining tables although “the main room of the restaurant was nearly empty”. Sheng allegedly told them that they had to wait until a table in the “party room” was set up for them. The “party room” was behind a wall, closed off from the main dining room. When the Volkmans inquired about sitting at their regular table, Mr. Sheng stated that “it was the restaurant’s ‘new policy’ ” and that “my customers have complained that they are upset to look at you.” The Volkmans sued Chinoise, alleging that such behavior on the part of Chinoise constituted a violation of section 296 (subd 2, par [a]) of the Executive Law (the Human Rights Law) and that all four of the Volkmans had suffered “great mental anguish and humiliation by the unlawful discriminatory practices of [Chinoise].” Each of the Volkmans was alleged to have suffered $100,000 in damages. On the date of this incident, plaintiff herein, the Insurance Company of North America (INA), had in force a policy covering Chinoise against certain claims. INA, however, disclaimed coverage and commenced this action to determine the rights of the parties under the policy. The policy contains the following pertinent language: “section ii coverages Legal Liability * * * The Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such personal injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent”. The policy also contains the following: “b — definitions * * * 12. ‘Personal injury’ means bodily injury or if arising out of bodily injury, mental anguish. It also includes injury arising out of one or more of the following offenses committed in the conduct of the Named Insured’s business. * * * group b — the publication or utterance of libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy”. The policy contains conditions applicable to all of its section II coverages, among which are the following exclusions: “Under Section II, insurance shall not apply under coverages A and B with respect to: * * * r. Groups A, B and C of the definition of personal injury: * * * (2) To personal injury arising out of the wilful