Opinion
1082
May 8, 2003.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered March 15, 2002, which, in an action for personal injuries sustained in an alleged shooting on defendant amusement park's premises, and a third-party action by the amusement park against its insurer for a declaration of coverage, granted the insurer's motion for summary judgment declaring that it is not obligated to defend or indemnify the amusement park, unanimously affirmed, without costs.
David B. Karel, for third-party plaintiff-appellant.
Arthur J. Liederman, for third-party defendant-respondent.
Before: Buckley, P.J., Nardelli, Sullivan, Rosenberger, Wallach, JJ.
The subject declaration was properly made upon a complaint alleging that plaintiff was "shot, assaulted, battered and attacked," and a policy containing a broad exclusion for claims arising out of an assault and battery. It does not avail appellant that issues of fact exist as to exactly how plaintiff was injured. The injury sought to be compensated was allegedly caused by an assault or battery without which plaintiff would have no cause of action. The possible lack of intent to cause that injury, and resulting plethora of possible negligence claims, are irrelevant to the issue of coverage (U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821; Mount Vernon Fire Ins. Co. v. Creative Hous., 88 N.Y.2d 347).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.