Ordered that the appeal by the defendants 35 Jackson Avenue Corp. d/b/a Syosset Sport Center, Brian Eckel, and Warren Eckel from the order entered January 13, 1998, is dismissed, as that portion of the order which granted relief as against those appellants is superseded by the order dated July 31, 1998; and it is further,
Ordered that the order dated July 31, 1998, is affirmed; and it is further,
Ordered that the order entered January 13, 1998, is affirmed insofar as appealed from by the defendant John Bruzzi; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The plaintiff General Accident Insurance Company (hereinafter General Accident) commenced this action for a judgment declaring that it has no duty to defend and/or indemnify the defendants 35 Jackson Avenue Corp. d/b/a Syosset Sport Center, Warren Eckel, and Brian Eckel (hereinafter the Eckel defendants), in the underlying action commenced by the defendant John Bruzzi against the Eckel defendants and the defendant Steven Stasi to recover damages allegedly sustained by Bruzzi resulting from alleged sexual assaults committed by Stasi and/or Warren Eckel.
The Supreme Court properly determined that General Accident had no duty to defend and/or indemnify the Eckel defendants in the underlying action, since the operative acts giving rise to any recovery by Bruzzi are clearly the alleged sexual assaults. The inclusion in the underlying complaint of causes of action to recover damages for the negligent hiring of Stasi and other causes of action "does not alter the fact that `the operative act[s] giving rise to any recovery'" are the alleged sexual assaults ( Mattress Discounters v. United States Fire Ins. Co., 251 A.D.2d 384, 385, quoting Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347, 352; see, U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821; Public Serv. Mut. Ins. Co. v. Camp Raleigh, 233 A.D.2d 273).
Moreover, General Accident is not estopped from asserting that neither of the policies at issue covers the underlying claim. Although it initially provided a defense to the Eckel defendants in the underlying action, General Accident reserved its rights to disclaim coverage ( see, O'Dowd v. American Sur. Co., 3 N.Y.2d 347, 355; Smith Jean, Inc. v. Royal Globe Ins. Cos., 139 A.D.2d 503, 505; Royal Ins. Co. v. State of New York, 149 Misc.2d 531, 536). Moreover, the Eckel defendants failed to demonstrate prejudice ( see, Hartford Acc. Indem. Co. v. Peck Mem. Hosp., 162 A.D.2d 659, 661).
O'Brien, J. P., Ritter, Joy and Altman, JJ., concur.