Lumbermens Mutual Casualty Co. v. Farkas , 455 N.Y.S.2d 747 ( 1982 )

In an action for a declaratory judgment, defendants Aetna Casualty & Surety Company, Firemen’s Fund Insurance Company of Newark, New Jersey, and Jack Davis appeal (1) from an order of the Supreme Court, Dutchess County (Jiudice, J.), dated January 18, 1982, which (a) granted plaintiff’s motion for summary judgment, (b) denied their cross motion for summary judgment, and (c) declared that plaintiff was not obligated to defend or indemnify its insureds (Joseph and Gizella Farkas) in a certain underlying action and (2) from so much of a further order of the same court, dated April 2, 1982, as, upon reargument, adhered to the original determination. (An appeal by the defendants Farkas from the order dated Jan. 18, 1982, has apparently been abandoned.) Appeal from the order dated January 18, 1982 dismissed as academic, without costs or disbursements. That order was superseded by the order granting reargument. Order dated April 2, 1982 modified by adding thereto, after the provision adhering to the original determination, the following: “except that so much of the prior order as granted plaintiff’s motion for summary judgment and made a declaration in plaintiff’s favor is vacated and its motion is denied.” As so modified, order affirmed insofar as appealed from, without costs or disbursements. There are issues of fact as to whether the actions of the son of the plaintiff’s insureds fell within the policy provision excluding coverage for “damage to or destruction of property * * * caused intentionally by any insured”. Gibbons, J. P., Weinstein, Thompson and Rubin, JJ., concur.