Summary
affirming denial of coverage for sexual harassment claim because claim did not constitute "occurrence" under policy definition and ruling that "inclusion in the underlying complaint of causes of action sounding in negligent hiring and supervision does not alter the fact that `the operative act giving rise to any recovery [are] the [intentional sexual] assault'"
Summary of this case from Smith v. Animal Urgent CareOpinion
November 10, 1997
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the judgment is affirmed, with costs.
The acts alleged in the underlying action sounding in sexual harassment, retaliatory discharge, and assault are intentional acts and thus do not constitute an "occurrence" within the meaning of the general liability policies herein, which define "occurrence" as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions" ( see, Board of Educ. v. Continental Ins. Co., 198 A.D.2d 816, 816-817; Tomain v. Allstate Ins. Co., 238 A.D.2d 774). Further, the inclusion in the underlying complaint of causes of action sounding in negligent hiring and supervision does not alter the fact that "`the operative act[s] giving rise to any recovery [are] the [intentional sexual] assault[s]'" ( Public Serv. Mut. Ins. Co. v Camp Raleigh, 233 A.D.2d 273; Board of Educ. v. Continental Ins. Co., supra, at 816-817).
Because there is no legal basis on which the insurer can be held liable for coverage, there is no obligation to provide a defense ( see, Spoor-Lasher Co. v. Aetna Cas. Sur. Co., 39 N.Y.2d 875, 876). Accordingly, the Supreme Court properly found that the carrier had no duty to provide a defense or to indemnify the plaintiffs in the underlying sexual harassment and retaliatory discharge action.
The appellants' remaining contentions are without merit.
Thompson, J. P., Pizzuto, Santucci and Joy, JJ., concur.