Amica Mutual Insurance v. Grose ( 1990 )

Judgment unanimously reversed on the law without costs, motion denied, cross motion granted in part and judgment granted to defendant, all in accordance with the following memorandum: Supreme Court erred by granting summary judgment to the plaintiff and declaring that it has no duty to defend or indemnify its insured, defendant Michael Grose. Grose was sued by codefendant for damages for injuries she allegedly suffered when Grose sexually assaulted her. Codefendant’s amended complaint contains three causes of action; the first alleges intentional assault and the second and third causes of action sound in negligence. Since codefendant’s second and third causes of action, asserted in the alternative, are within the policy’s coverage, codefendant’s cross motion is granted in part and it is declared that plaintiff owes a duty to defend Grose (see, Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310; New York Cent. Mut. Fire Ins. Co. v Heidelmark, 108 AD2d 1093). Determination of the indemnity issue must await the results of the trial of the underlying action (see, Prashker v United States Guar. Co., 1 NY2d 584). (Appeal from judgment of Supreme Court, Monroe County, Galloway, J.—declaratory judgment.)