The Fourth Department, reversing Supreme Court, determined defendant insurer was not obligated to defend plaintiff (pursuant to plaintiff’s homeowner’s policy) because the injuries stemmed from an apparent assault by plaintiff on his neighbor (Salerno) and therefore involved intentional, not negligent, acts. The policy excluded coverage for injuries resulting from intentional acts. Salerno sued plaintiff in tort:
In assessing whether a policy exclusion for injuries ” intentionally caused’ ” by the insured applies, a court must look to the pleadings in the underlying action and “limit [its] examination to the nature of the conduct [of the insured] as it is there described” … . The “analysis depends on the facts which are pleaded, not conclusory assertions” … . When a complaint alleges in a conclusory manner that an assault was committed negligently, an insurer has no duty to defend where the insured does not provide “evidentiary support for the conclusory characterization of [the] conduct as negligent or provide an explanation of how the intrinsically intentional act of assault . . . could be negligently performed” … . An insured may not “exalt form over substance by labeling [an underlying tort] action as one to recover damages for negligence” where the conduct is inherently intentional … .
Here, the second cause of action in the Salerno complaint contains no more than a conclusory characterization of plaintiff’s conduct as negligent without any supporting factual allegations. Thus, the complaint in the underlying action does not contain sufficient allegations of negligence to avoid the policy exclusion … . Scalzo v Central Co-op. Ins. Co., 2020 NY Slip Op 04639, Fourth Dept 8-20-20