HANOVER INSURANCE COMPANY v. SAGE

Order reversed, on the law, with costs, motion granted, and it is declared that plaintiff Hanover Insurance Co. has a duty to defend the defendant Richard Sage in the aforementioned action.

Special Term properly found that there was a factual issue as to whether the claim fell under an exclusionary provision of the respondent's insurance policy. Since it cannot "be concluded as a matter of law that there is no possible factual or legal basis on which [the insurer] might eventually be held to be obligated to indemnify [the insured] under any provision of the insurance policy" (Spoor-Lasher Co. v Aetna Cas. Sur. Co., 39 N.Y.2d 875, 876; see also, Seaboard Sur. Co. v Gillette Co., 64 N.Y.2d 304), the insurer has a duty to defend. Thus Special Term erred when it denied the defendant Sage's motion for partial summary judgment declaring that the plaintiff Hanover Insurance Co. had a duty to defend him. Bracken, J.P., Brown, Niehoff and Eiber, JJ., concur.