In the underlying action, Jeffrey Naprawa alleges that a building employee committed civil assault and battery by beating him with a pipe after forcefully removing him from the subject building. He seeks to hold the building defendant insureds vicariously liable for their employee's intentional torts and also asserts a common-law negligence claim against the building defendants directly.
Issues of fact precluding summary judgment exist as to whether the underlying incident was an "occurrence," i.e., an accident, within the meaning of the policy, or an intentional act outside the scope of coverage.
Since a timely disclaimer would not be necessary under the statute if the underlying incident was not an "occurrence" (see, Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185), it would be premature to determine whether noncompliance with Insurance Law § 3420(d) would bar plaintiff insurer from relying on the policy's intentional tort exclusion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.