Allstate Insurance v. Boonyam

—In an action for a judgment declaring that the plaintiff does not have the duty to defend or indemnify the appellants in an underlying action to recover damages for wrongful death, the appeal is from an order and judgment (one paper) of the Supreme Court, Queens County (Leviss, J.), entered December 31, 1990, which, upon granting the plaintiff’s motion for summary judgment declaring that it had no duty to defend or indemnify the defendant Sugulabhat Boonyam in the underlying wrongful death action commenced by the defendants Yung-Fu Chow and Frances Chow, made the appropriate declaration.

Ordered that the order and judgment is affirmed, with costs.

The defendant Sugulabhat Boonyam and his parents, Sagol and Subhattra Boonyam, were sued in an underlying action to recover damages for the wrongful death of David Chow, after Sugulabhat Boonyam, then a minor, allegedly struck Chow in the head with a hammer several times and inflicted multiple stab wounds to his chest. Chow, who was 15 years old at the time of the incident, was survived by his parents, who instituted the underlying action. We find that the plaintiff, Allstate Insurance Company, tendered sufficient evidentiary proof in admissible form to establish its entitlement to summary judgment in the declaratory judgment action (see, Zuckerman v City of New York, 49 NY2d 557). We also find that the record established that any recovery in the underlying action will be based upon the intentional torts of assault and battery, rather than negligence (see, New York Cas. Ins. Co. v Ward, 139 AD2d 922, 923; Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376; Trott v Merit Dept. Store, 106 AD2d 158, 160; see also, Allstate Ins. Co. v Mugavero, 79 NY2d 153). Accordingly, since the plaintiff has unequivocally established that the harm caused was not within the coverage of the policy, the Supreme Court’s award of summary judgment in its favor and declaration that it was no longer obligated to defend or indemnify Sugulabhat Boonyam in the underlying action was proper (see, New York Cas. Ins. Co. v Ward, supra). Fiber, J. P., O’Brien, Ritter and Copertino, JJ., concur.