47 A.D.2d 856 | N.Y. App. Div. | 1975
In an action inter alia to declare that, under a policy of personal liability insurance issued by defendant to plaintiff, defendant is obligated to defend plaintiff in a certain slander action, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated April 29, 1974, which, after a nonjury trial, declared (1) that the policy did not entitle plaintiff to coverage or defense by defendant in the slander action and (2) that defendant properly refused to provide coverage to plaintiff with respect to that action. Judgment affirmed, with costs. In 1972, plaintiff allegedly uttered slanderous statements directed against the general partners of a real estate syndicate in which he was a limited partner. Those statements form the basis of a suit in slander commenced against plaintiff by the general partners. Plaintiff claims there is coverage for those claims under the personal excess liability policy here in question. However, coverage for liability as a result of the alleged statements is excluded by virtue of the express terms of the "business pursuits” exclusion contained in the policy, which provide: "This policy does not apply * * * to personal injury * * * arising out of * * * any business pursuits * * * of the insured”. Plaintiff, as a limited partner of long standing in this real estate syndicate, was primarily concerned with realization of profits from his investment. Under these circumstances, the test of "business pursuits” set forth in Home Ins. Co. v Aurigemma (45 Mise 2d 875), i.e., a customary engagement or continued activity for the purpose of profit, is satisfied (cf. Levinson v Aetna Cas. & Sur. Co., 64 Mise 2d 979, 981; Fadden v Cambridge Mut. Fire Ins. Co., 51 Mise 2d 858, 862, affd 27 AD2d 487). Plaintiff’s primary means of livelihood consisted of activities other than his investment in this real estate syndicate. However, for purposes of the "business pursuits” exclusion, the "business” engaged in by him need not necessarily be limited to his sole occupation or employment (cf. Matter of Steinbeck v Gerosa, 4 NY2d 302, 308). By the very nature of partnership, plaintiff, as a limited partner, was more clearly engaged in a "business pursuit” than is, for example, a corporate stockholder. Cohalan, Acting P. J., Christ, Brennan and Munder, JJ., concur; Shapiro, J., dissents and votes to reverse the judgment and to declare that defendant is obligated under the terms of the policy of insurance to defend plaintiff, indemnify him and reimburse him for expenses already incurred in connection with the slander action, with the following memorandum: In this declaratory judgment action Special Term has determined that the plaintiff insured is not entitled to coverage under an "umbrella” policy of personal liability insurance issued by the defendant insurer, Glens Falls Insurance Company. I respectfully dissent from this court’s affirmance of the judgment and vote to award judgment in plaintiff’s favor, questions involved 1. Is the "business pursuits” exclusion in defendant’s policy, as therein defined, applicable to the facts of the case? Special Term answered "Yes”. I disagree. 2. Is the "intentional injury” exclusion of the policy applicable to the claim made against plaintiff in the slander
. The disclaimer was reiterated, on the same ground, on September 18, 1972 and again on January 4, 1973.
. Indeed, the policy provides coverage for a long list of "intentional” torts gathered under the umbrella of "personal injury”, viz.: "5.9 personal injury means: * * * (b) false arrest or false imprisonment, wrongful detention, wrongful eviction or malicious prosecution; (c) libel, slander, defamation of character or reputation, invasion of rights of privacy, humiliation or mental anguish; or (d) if not committed by or at the direction of the Insured, illegal discrimination or, unless so committed for the protection of persons or property, assault and battery”.
. The cover page of the policy, while clearly not an operative part of the insurance