You are here: / / THE MANAGER OF PLAINTIFF BAR PUSHED A MAN DOWN A SET OF STAIRS CAUSING...
,

THE MANAGER OF PLAINTIFF BAR PUSHED A MAN DOWN A SET OF STAIRS CAUSING FATAL INJURIES; THE ASSAULT AND BATTERY EXCLUSION IN DEFENDANT’S INSURANCE POLICY APPLIED AND THE INSURER WAS NOT OBLIGATED TO DEFEND THE BAR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the assault and battery insurance policy exclusion applied and the insurer was not obligated to defend the plaintiff in the underlying personal injury action. The manager at plaintiff bar had pushed a man down a set of stairs, causing fatal injuries. The manager pled guilty to manslaughter:

Generally, an insurer is “required to provide a defense unless it can demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation” … . …

… [A]ll of the claims against plaintiffs in the underlying action are ” ‘based on’ ” or arise out of the bar manager’s assault, “without which [the plaintiff in the underlying personal injury action] would have no cause of action” … . In other words, “no cause of action would exist but for the assault” and, therefore, the assault and battery exclusion is applicable and precludes coverage … . …

… [A] determination on this issue need not await discovery in the personal injury action. The analysis of whether an exclusion applies “depends on the facts which are pleaded, not the conclusory assertions” contained in the underlying complaint … . “[T]he allegations of the complaint [in the underlying personal injury action] cast that pleading solely and entirely within the policy exclusions, and . . . the allegations, in toto, are subject to no other interpretation” … . Even if it were learned during discovery that there was a defect with respect to the stairs, the fact remains that, but for the bar manager’s assault, decedent would not have fallen down the stairs. NHJB, Inc. v Utica First Ins. Co., 2020 NY Slip Op 05319, Fourth Dept 10-2-20

 

You might also like
ALTHOUGH THE PROSECUTOR WAS GUILTY OF SERIOUS MISCONDUCT, DEFENDANT DID NOT OBJECT TO THE PROSECUTOR’S REMARKS AND REVERSAL IN THE INTEREST OF JUSTICE WAS NOT WARRANTED, TWO-JUSTICE DISSENT (FOURTH DEPT).
Defendant Should Have Been Allowed to Present Expert Opinion-Evidence About the Reliability of Eyewitness Identification
“Depraved Indifference” Standard Not Met/HIV Positive Defendant Did Not Disclose Status to Victim
DEFENDANT COMPLAINED THAT HIS ATTORNEY HAD NOT FILED OMNIBUS MOTIONS BUT DEFENSE COUNSEL SAID HE HAD FILED THEM AND THE COURT SAID IT HAD RECEIVED THEM; IN FACT, HOWEVER NO MOTIONS HAD BEEN FILED; DEFENDANT’S COMPLAINTS ABOUT HIS ASSIGNED COUNSEL WARRANTED FURTHER INQUIRY BY THE COURT; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW TRIAL ORDERED (FOURTH DEPT).
Defendant’s Reaching for Something in His Pocket, Without More, Did Not Justify Police Pursuit
SUPREME COURT PROPERLY DISMISSED DEFENDANTS’ SOLE-PROXIMATE-CAUSE AFFIRMATIVE DEFENSE IN THIS LABOR LAW 240(1) LADDER-FALL CASE; TWO JUSTICE DISSENT (FOURTH DEPT).
THE DEFENDANT’S SIGNATURE ON THE PRENUPTIAL AGREEMENT WAS NOT ACKNOWLEDGED UNTIL RIGHT BEFORE THE DIVORCE PROCEEDINGS, SEVEN YEARS AFTER PLAINTIFF’S SIGNATURE ON THE AGREEMENT WAS ACKNOWLEDGED; IN THIS CIRCUMSTANCE, THE PRENUPTIAL AGREEMENT MUST BE MUTUALLY REAFFIRMED TO BE VALID (FOURTH DEPT).
DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE VILLAGE DID NOT DEMONSTRATE INFANT PLAINTIFF ASSUMED THE RISK OF INJURY... CLAIMANT DID NOT TRY TO HIDE THE DOG-WALKING BUSINESS AND WAS ONLY TANGENTIALLY...