WILLARD v. PREFERRED MUTUAL INSURANCE CO

We conclude that defendant met its burden of proving that the claim falls within the intentional act exclusion of the policy. In determining whether a policy exclusion applies, the facts alleged in the complaint, rather than the conclusory assertions found therein, are controlling ( see, Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 162). The essential facts asserted in the Sauer complaint are that plaintiff defamed Sauer by falsely accusing him of criminal acts. That conduct falls within the intentional act exclusion in the policy ( see, Shapiro v. Glens Falls Ins. Co., 39 N.Y.2d 204; Brandstetter v. USAA Cas. Ins. Co., 163 A.D.2d 349, 350, lv dismissed and lv denied 78 N.Y.2d 1027; Weinberg v. Insurance Co., 88 Misc.2d 82, 83-84). Because no cause of action would exist "but for" the defamation, the conclusory assertion in the Sauer complaint that plaintiff was negligent is insufficient to obligate defendant to defend or indemnify plaintiff ( see, Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347, 350-352; U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 822-823).

In light of our decision, we do not reach defendant's remaining contention. We modify the order, therefore, by granting defendant's cross motion and granting judgment in favor of defendant, declaring that it has no obligation to defend or indemnify plaintiff in the underlying action.